Opinion 15-157

September 10, 2015

Digest:         Absent a court directive or ethics rule requiring the attorneys to refrain from speaking to a non-party witness during a recess in the midst of a hearing, a court attorney referee need not take any action on learning that an attorney briefly spoke to the witness about subpoenaed materials during the recess.

Rules:          CPLR 4301; 22 NYCRR 100.2; 100.2(A); 100.3(D)(2); 100.6(A); 22 NYCRR 1200, Rule 3.4(c); Opinions 15-69; 14-88; 08-98; 95-119; Matter of Roderman, 65 AD3d 350 (4th Dept 2009).

Opinion:

         The inquiring court attorney-referee recently conducted a hearing at which an attorney for one side called a non-party witness to testify. Following the witness’ direct examination, and before cross-examination, a brief recess occurred. When the hearing resumed, opposing counsel advised the referee the attorney who conducted the direct examination spoke to the witness during the recess. The attorney confirmed that a conversation took place, but stated the subject concerned subpoenaed materials only. The inquiry does not suggest that any existing rule or order barred the attorney from speaking to the witness during the recess,¹ or that the referee doubts the attorney’s description of the conversation. The inquiring referee asks whether he/she must report the attorney.

          Court attorney referees must obey the Rules Governing Judicial Conduct while performing their judicial duties and “so far as practical and appropriate” use the rules to guide their conducts (see 22 NYCRR 100.6[A]; Opinions 15-69; 95-119). Like judges, they must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a referee who receives information indicating a “substantial likelihood” a lawyer has committed a “substantial violation” of the Rules of Professional Conduct must take “appropriate action” (see 22 NYCRR 1003[D][2]).

         Opinion 14-88 (citations omitted) summarizes the general principles and analysis as follows:

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. A judge need not undertake any investigation of an attorney’s alleged misconduct. 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.” Because “appropriate action” depends on the circumstances of each case, it is ordinarily left to the judge’s discretion to determine the appropriate action. 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.

         In the Committee’s view, the facts presented here do not necessarily constitute attorney misconduct. Absent a court directive or ethical rule requiring the attorneys to refrain from speaking to a non-party witness during a recess in the midst of a hearing, a court attorney referee need not take any action on learning that an attorney briefly spoke to the witness about subpoenaed materials during the recess.²

         As a reminder, a referee who does report an attorney to a disciplinary authority is disqualified from presiding in matters involving the attorney during the pendency of the disciplinary proceeding and for two years after the proceeding ends (see e.g. Opinion 15-69). Such disqualification is not subject to remittal “unless the attorney waives confidentiality or the grievance committee issues a public disciplinary decision” (Opinion 14-88). Moreover, because the referee cannot relieve him/herself from an assignment (see CPLR 4301), if the attorney appears in a case assigned to the referee during the applicable period, the referee must “advise the judge who appointed him/her so that the judge can relieve the court attorney of his/her responsibilities with respect to the case and assign another court attorney referee” (Opinion 08-98).

___________________

         ¹For example, the referee does not state that he/she had directed the attorney to refrain from speaking to the witness or that opposing counsel requested such an order before the recess.

         ²A lawyer must not “disregard ... a ruling of a tribunal made in the course of a proceeding, but the lawyer may take appropriate steps in good faith to test the validity of such rule or ruling” (see 22 NYCRR 1200, Rule 3.4[c]). In Matter of Roderman, 65 AD3d 350 (4th Dept 2009), an attorney was censured for, among other things, disobeying the trial judge’s directive to refrain from speaking to a witness during a recess.