Opinion 12-55

April 26, 2012

Digest:         An attorney’s refusal to make potentially incriminating statements, standing alone, does not rise to the level of a “substantial likelihood” that the attorney has committed professional misconduct.

Rules:          US Const, 5th Amend; Judiciary Law §212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.3(B)(1); 100.3(D)(2)-(3); 101.1; Opinions 11-87; 10-86; 10-85; 07-129; 07-82.

Opinion:

         The inquiring judge states that during a trial in which he/she presided, a litigant, who is also an attorney, “exercised [his/her] Fifth Amendment privilege against self incrimination” when testifying. Now that the judge has issued a final decision in the matter, opposing counsel has asked the judge to notify the grievance committee that the plaintiff/attorney invoked his/her right “[not to] be compelled in any criminal case to be a witness against himself” (US Const, 5th Amend). The judge asks whether he/she is required to report the plaintiff/attorney to the grievance committee in this circumstance.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must be faithful to the law, must maintain professional competence in the law, and must perform his/her judicial duties without being swayed by partisan interests, public clamor, or fear of criticism (see 22 NYCRR 100.3[B][1]). Acts of a judge in the discharge of disciplinary responsibilities are part of a judge’s judicial duties (see 22 NYCRR 100.3[D][3]), and a judge who receives information indicating a “substantial likelihood” that a lawyer has committed a “substantial violation” of the Rules of Professional Conduct must take “appropriate action” (see 22 NYCRR 100.3[D][2]).

         The Committee has generally advised judges that they must determine whether there is a “substantial likelihood” that an attorney committed a “substantial violation” of the Rules of Professional Conduct, because the judge is in the best position to evaluate and assess all relevant, known circumstances (see Opinion 10-85). The Committee also has advised that when a judge receives information indicating a substantial likelihood that a lawyer’s conduct constitutes a substantial violation of the Rules of Professional Conduct, but the misconduct does not rise to a level that seriously calls into question the attorney’s honesty, trustworthiness or fitness as a lawyer, the judge has the discretion to take some appropriate action other than reporting the conduct to a disciplinary authority (see id.).

         In some circumstances, albeit highly unusual ones, a judge must report an attorney who has actually made incriminating statements in the judge’s presence – as, for example, when an attorney has admitted under oath that he/she committed perjury (see Opinion 07-129). However, the present inquiry raises essentially the opposite question: Must a judge report an attorney who, by invoking his/her Fifth Amendment rights under the United States Constitution, has specifically declined to make potentially incriminating statements?

         This question appears to be a matter of first impression for the Committee, and the Committee notes, preliminarily, that it cannot opine on matters of statutory or constitutional interpretation (see Judiciary Law §212[2][l]; 22 NYCRR 101.1; Opinion 11-87).

         The Committee has previously considered whether a judge was obligated to report an attorney based on the allegations of a criminal complaint against the attorney, where the judge had “no personal knowledge about the alleged conduct” and was “unaware of any corroborating evidence” (Opinion 10-86). Although the judge had already concluded that the criminal charges, if proven, would constitute a “substantial violation” of the Rules of Professional Conduct, the Committee emphasized that the judge must also make a second determination, i.e., “whether, based on the information currently available to [the judge], there also is a ‘substantial likelihood’ that the charges are true” (id.).

         Despite the novelty of the question in the present inquiry, Opinion 10-86 provides some useful guidance. Here too, it appears that the judge has no personal knowledge of the alleged misconduct. And, the judge’s inquiry reveals little, if any, corroborating evidence. Therefore, it is the Committee’s view that an attorney’s refusal to make potentially incriminating statements, without more, does not constitute a “substantial likelihood” that the attorney has committed professional misconduct within the meaning of Section 100.3(D)(2),¹ and the inquiring judge is not required to report the plaintiff/attorney to the grievance committee.

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   ¹ A judge is not required to conduct an investigation of alleged misconduct (see Opinion 07-82).