Opinion 13-61

June 13, 2013

Digest:         A judge who concludes that an attorney has threatened to file a complaint against the judge in an effort to unduly influence the judge’s judicial decision should report the attorney to the appropriate disciplinary committee.

Rules:          22 NYCRR 100.2(A); 100.2(C); 100.3(B)(6); 100.3(D)(2); 22 NYCRR 100.3(E)(1); Opinions 11-48; 10-85; 09-142; 08-198; 07-129; 07-82; 06-99; 05-37; 02-85; Joint Opinion 08-183/08-202/09-112.

Opinion:

         The inquiring judge states that an attorney accused the judge of having engaged in improper ex parte communications in a particular case,¹ and threatened to report the judge to the Commission on Judicial Conduct if the judge did not “undo” the judge’s judicial decision and “expunge the record” by the end of the day. The judge attempted to explain that no such ex parte communications had taken place, but the attorney “continually interrupted” the judge, until the judge finally agreed to “look into it” and to “give [the attorney] a return call later that day if [the judge] found something was amiss.” The judge has subsequently reviewed his/her notes and records, and feels confident in his/her judicial decision and the manner in which it was reached. However, the inquiring judge remains uncomfortable with the attorney’s apparent efforts to use the judicial disciplinary process “as a threat ... to get the judge to undo his or her decision,” and now asks if he/she must report the attorney to the grievance committee.

         A judge must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Among other limitations, a judge must not initiate, permit, or consider impermissible ex parte communications (see 22 NYCRR 100.3[B][6]), and must not permit others to convey the impression that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]). 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” (22 NYCRR 100.3[D][2]).

         The Committee has advised that a judge who learns of an attorney’s potential misconduct is ordinarily in the best position to evaluate and assess all relevant circumstances and determine whether there is a substantial likelihood that the lawyer’s conduct constitutes a substantial violation of the Rules of Professional Conduct (see, e.g., Opinions 11-48; 10-85; 09-142; 08-198; 07-129; 06-99). The judge is under no ethical obligation to investigate any alleged misconduct (see Opinion 07-82).

         If the judge concludes there is a substantial likelihood that a lawyer has engaged in a substantial violation of the Rules of Professional Conduct, the action the judge must take depends on the nature of the misconduct (see Opinion 11-48). If the misconduct is so egregious that it seriously calls into question the attorney’s honesty, trustworthiness or fitness as a lawyer, the appropriate action is to report the conduct to the appropriate disciplinary authority (see Opinions 11-48; 10-85). However, if the misconduct does not reach that level, the judge has the discretion to determine what action is appropriate under the circumstances, and may therefore take some other, less severe action than reporting the conduct to a disciplinary authority (see Opinion 10-85). Of course, if the judge concludes that the misconduct is an insubstantial or technical violation, it is within the judge’s discretion to take or not take any action in response (see Opinion 11-48).

          Occasionally, the ethical violation described in an inquiry is so clearly serious or egregious that the Committee has advised a judge that he/she should report it to a disciplinary authority (see Opinions 09-142; 07-129). For example, the Committee has advised that reporting is mandatory if a judge concludes that an attorney “has attempted to unduly influence the judge’s decisions and has acted extremely unprofessionally” (Opinion 05-37); that an attorney “engaged in a deliberate deception intended to perpetrate a fraud and deceive the parties and/or the court” (Opinion 02-85); or that an attorney “deliberately sought to deceive the court and his/her own client, and repeatedly acted in an extremely unprofessional manner in defiance of court directives” (Opinion 09-142). In such instances, the conduct must be reported because “[s]uch conduct, if it occurred as described, directly implicates the attorney’s honesty, trustworthiness, and fitness to be a lawyer” (Opinion 09-142).

         The circumstances set forth here raise strikingly similar concerns. Therefore, if the inquiring judge concludes that the attorney has in fact attempted to unduly influence the outcome of a matter before the judge, and has acted in an extremely unprofessional manner, by threatening to file an apparently baseless complaint against the judge, the judge must report the attorney to the appropriate disciplinary committee for investigation (see Opinions 09-142; 05-37).

         After reporting an attorney to a disciplinary committee, a judge must disqualify him/herself in all matters where the attorney appears before him/her, both while the matter is pending and for two years thereafter (see 22 NYCRR 100.3[E][1]; Opinion 09-142; Joint Opinion 08-183/08-202/09-112). To protect the attorney’s right to confidentiality, the judge may not reveal the reason for disqualification and, thus, remittal is not available (see Joint Opinion 08-183/08-202/09-112).

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     ¹ The inquirer states that the attorney characterized this alleged conduct as “illegal and unethical.”