Opinion 14-88

June 12, 2014

Please Note: As of the Committee’s April 29, 2021 meeting:

(1) The Committee has not overruled its prior opinions prohibiting remittal of disqualification in matters where a judge previously reported an attorney to the grievance committee. 

(2) With respect to whether a judge may publicly disclose the reason for recusal here, in light of the apparent dissonance between Judiciary Law § 9 (eff. December 2020) and Judiciary Law § 90(10), we have advised: “Whether a judge who has reported an attorney to an attorney grievance committee may publicly disclose the reason for recusal, when confidentiality has not been waived, is a legal question we cannot resolve.”  See Opinion 21-45 (but noting that private disclosure to the reported attorney is ethically permissible).

Digest:         A judge who learns an attorney appearing before him/her pro se has testified under oath that he/she used a fictitious bank account to shield his/her law firm income from court-ordered child support payments, must report the attorney to the attorney grievance committee. Thereafter, the judge must disqualify him/herself from any case in which the attorney appears during the pendency of the disciplinary proceeding and for two years thereafter. Remittal is unavailable unless the attorney waives confidentiality or the grievance committee issues a public disciplinary decision.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(D)(2); 100.3(F); Opinions 14-50; 13-77; 13-64; 13-61; 10-122; 10-85 (Amended); 09-142; 09-49; 08-198; 07-129; 07-82; 04-116; Joint Opinions 08-183/08-202/09-112; 05-105/05-108/05-109.

Opinion:

         A judge asks whether he/she must report an attorney to the grievance committee based on the attorney’s sworn testimony as a pro se litigant in a case before the judge. In reviewing the parties’ motion papers and supporting exhibits, the judge reviewed a copy of the attorney’s deposition transcript and learned the attorney testified under oath that he/she instructed his/her secretary to create a fictitious bank account to shield law firm income from seizure for payment of court-ordered child support.¹ If the judge must report the attorney to the grievance committee, the judge also asks whether he/she must thereafter disqualify him/herself from the attorney’s case.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, 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]).

         In general, the Committee has advised that a judge must determine whether in a particular case there is a “substantial likelihood” an attorney has committed a “substantial violation” of the Rules of Professional Conduct based on all the facts and circumstances known to the judge (see Opinions 08-198; 07-129). A judge need not undertake any investigation of an attorney’s alleged misconduct (see Opinion 07-82; see also Opinion 14-50 [a judge’s disciplinary obligations are not triggered merely because a law enforcement officer has mentioned the names of certain attorneys and judges while testifying about a defendant’s possible criminal activities]). If a judge concludes there is a substantial likelihood that an attorney has committed a substantial violation of the Rules of Professional Conduct, the judge “must take appropriate action” (22 NYCRR 100.3[D][2]). Because “appropriate action” depends on the circumstances of each case, it is ordinarily left to the judge’s discretion to determine the appropriate action (see Opinion 10-85 [Amended]). However, if the judge concludes the misconduct seriously calls into question the attorney’s honesty, trustworthiness or fitness as a lawyer, then the only appropriate action is to report the attorney to the appropriate disciplinary authority (see Opinion 07-129 [attorney admitted under oath that he/she committed perjury]).

         As the Committee has previously noted, it “cannot judge the credibility of” allegations of misconduct “and is not empowered to do so” (Joint Opinion 05-105/05-108/05-109). There have nonetheless been several instances where conduct described in an inquiry to this Committee, if true, demonstrated a substantial likelihood of a substantial violation that clearly called into question an attorney’s honesty, trustworthiness or fitness as a lawyer and, therefore, at the very least, warranted an investigation by the attorney grievance committee (see Opinions 13-77; 07-129). Here, the “substantial likelihood” prong appears to be satisfied because the judge has reviewed the attorney’s sworn testimony about his/her own conduct (see Opinions 13-77 [attorney admission of misconduct in a verified complaint]; 07-129 [attorney admission of misconduct during sworn testimony]; 04-116 [credible claim of sexual activity between attorney and client requires action]). Moreover, the facts the inquiring judge describes clearly indicate the attorney engaged in conduct which, if proved, not only constitutes a “substantial violation” of the applicable attorney ethics rules but also casts doubt on the attorney’s honesty, trustworthiness or fitness as a lawyer (see Opinions 13-77 [attorney’s intentional misstatement of facts in verified complaint]; 09-142 [attorney’s deliberate deception of the court]; 07-129 [lawyer’s admission under oath to committing perjury]). The Committee, therefore, concludes the inquiring judge must report the attorney to the attorney grievance committee.

         Once the judge reports the attorney, the judge must disqualify him/herself from the present case, as well as any other case in which the attorney appears either as a party or as an attorney, both during the pendency of the disciplinary matter, and for a period of two years after the disciplinary matter is fully resolved (see Opinions 13-61; 10-122; 09-142). As the Committee has previously advised, “the attorney’s right to confidentiality, both during the disciplinary proceeding and after it is resolved in his/her favor, is paramount” (Joint Opinion 08-183/08-202/09-112). Therefore, because remittal is not permitted when a judge is unwilling or unable to make full disclosure of the basis for disqualification (see 22 NYCRR 100.3[F]; Opinion 13-64), remittal is not available unless the attorney waives confidentiality or the grievance committee issues a public disciplinary decision (see generally Opinion 10-122; Joint Opinion 08-183/08-202/09-112).

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     ¹ The attorney is currently suspended from the practice of law, but the judge does not know the basis for the grievance committee’s decision; and thus does not know whether the present conduct was previously reported (see Opinion 09-49 [a judge who is satisfied that an attorney’s alleged misconduct has actually been previously reported is not required to take any further action]).