Opinion 14-50

April 24, 2014

Digest:         A judge is not required to take any action in furtherance of his/her disciplinary responsibilities merely because a law enforcement officer has, in the course of testifying about possible criminal activity on the part of a criminal defendant, mentioned the names of one or more attorney(s) and judge(s).

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(D)(1), (2); Opinions 14-39; 13-146; 12-55; 10-175; 10-86; 10-14; 09-132; 07-82.

Opinion:

         A law enforcement officer who testified before the inquiring judge about possible criminal activity mentioned the names of one or more local attorney(s) and judge(s). According to the judge, the officer’s testimony did not include details of the extent of the attorneys’ and judges’ involvement, if any, in the possible criminal activity. The judge asks what his/her obligations are regarding named individuals.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge who receives information indicating a “substantial likelihood” that a lawyer has committed a “substantial violation” of the Rules of Professional Conduct or that a judge has committed a “substantial violation” of the Rules Governing Judicial Conduct must take “appropriate action” (22 NYCRR 100.3[D][1], [2]).

         A judge must decide for him/herself whether there is a “substantial likelihood” that an attorney’s or judge’s conduct is a “substantial violation” of the relevant Rules (see 22 NYCRR 100.3[D][1], [2]; Opinions 12-55; 10-175; 10-86; 09-132). If so, the “appropriate action” to be taken will be governed by the seriousness of the misconduct (see 22 NYCRR 100.3[D][1], [2]; Opinions 14-39; 13-146; 10-175; 10-14; 09-132).

         The Committee has previously advised that a judge who learns an attorney is the subject of criminal charges, but has no personal knowledge of the circumstances underlying the charges, is not required to take any action unless he/she concludes there is a substantial likelihood the charges are true (see Opinion 14-39; 10-86). Nor is the judge required to undertake any investigation to determine the facts (see Opinion 07-82). Rather, the judge may “discharge his/her disciplinary responsibilities based on the facts already known to the judge without further inquiry” (Opinion 13-146). Even where an attorney chose to disclose that he/she was under indictment, the Committee concluded the judge did not have substantial knowledge of a substantial violation (see Opinion 14-39).

          Similarly, as the judge in the present inquiry does not have information indicating a substantial likelihood of any wrongdoing by the named individuals, the judge is not ethically required to take any action pursuant to his/her disciplinary obligations (see 22 NYCRR 100.3[D][1], [2]; Opinions 14-39 [judge having learned an attorney is under indictment, but having no personal knowledge of the underlying circumstances, is not required to report attorney to disciplinary authority, even where conviction on such charges would require disbarment]; 10-86 [judge who believes charges in criminal complaint against lawyer would, if proven, constitute a substantial violation is not required to take any disciplinary action unless he/she also concludes there is a substantial likelihood that charges are true]; cf. Opinion 12-55 [attorney litigant’s invocation of Fifth Amendment right against self-incrimination during trial testimony does not, standing alone, rise to level of “substantial likelihood” that attorney committed professional misconduct, and judge thus is not required to report the attorney to the disciplinary authority]).