Opinion 13-77

August 5, 2013

Dear Justice:

         This responds to your inquiry (13-77) asking whether you are required to report an attorney for misconduct. You advise the attorney filed a verified complaint in an action in which you presided, against a former client. In the complaint, the attorney swears that he/she advised the client that the client’s law suit was settled. In fact, the attorney had discontinued the suit and paid the client the purported settlement amount from the attorney’s own, personal funds.

         A judge must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge who has 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]).

         If a judge concludes that a lawyer has committed a substantial violation of the Rules, the action the judge must take will depend on the nature of the misconduct (see Opinion 09-190). If the misconduct is so serious that it calls into question an attorney’s honesty, trustworthiness or fitness as a lawyer, the judge must report the conduct to the appropriate disciplinary authority (see Opinions 10-85). For example, where an attorney admitted under oath that he/she committed perjury, the Committee advised that the judge should report the attorney to the appropriate attorney disciplinary committee (see Opinion 07-129).

         In the Committee’s view, the conduct you describe, and the fact that the attorney him/herself admits engaging in the conduct in a verified complaint, satisfies both elements set forth in 100.3(D)(2) of the Rules Governing Judicial Conduct that trigger a judge’s obligation to take appropriate action. And, it is the Committee’s view that the attorney’s conduct, as you have described it, seriously calls into question the attorney’s honesty, trustworthiness or fitness as a lawyer. Therefore, unless you know that the specific conduct you have described has already been reported, you should report the attorney to the appropriate attorney disciplinary committee (see Opinion 10-122). You are not required to conduct an investigation to determine whether the attorney has previously been reported and/or disciplined for this specific conduct (cf. Opinion 07-82). Rather, under the circumstances presented, if you are uncertain whether a report has been made, you should simply report the attorney.

         I have enclosed a copy of Opinions 10-122, 10-85, 09-190, 07-129 and 07-82 for your convenience.

Very truly yours,

George D. Marlow, Assoc. Justice

Appellate Division, First Dept. (Ret.)

Committee Chair

Encls.