Opinion 16-110

October 7, 2016

Dear :

         This responds to your inquiry (16-110) about your ethical obligations in light of information you learned “confidentially” from another judge in a nearby jurisdiction that the private attorney who serves as a part-time prosecutor in your court is also engaged in private defense work. If true, you believe the attorney’s defense work violates: 1) the express conditions under which the attorney was appointed as a part-time prosecutor; and 2) a published attorney ethics advisory opinion. You indicate you have no personal knowledge the attorney is engaged in private defense work. This attorney is “the only individual presently authorized” to prosecute certain offenses in the town or village court.

         A judge must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, if a judge receives information indicating a substantial likelihood a lawyer committed a substantial violation of the Rules of Professional Conduct (see 22 NYCRR Part 1200), he/she must take appropriate action (see 22 NYCRR 100.3[D][2]). Ordinarily, the initial assessment of whether this two-prong test is met is confined solely to the discretion of the inquiring judge because he/she is best positioned to evaluate and assess all relevant, known circumstances.

         The judge must determine if there is a substantial likelihood a lawyer has committed a substantial violation of the Rules of Professional Conduct because the judge is best positioned to evaluate and assess all relevant, known circumstances. However, a judge has no duty to investigate whether allegations of misconduct are true. In addition, the Committee has previously advised that “mere rumor, gossip, innuendo, or other ‘third-hand’ information, does not trigger a judge’s disciplinary obligations” (Opinion 15-138/15-144/15-166).

          Here, you have no first-hand knowledge this attorney is doing defense work, and you have no duty to investigate it. Accordingly, the “substantial likelihood” prong does not appear to be met and you have no duty whatsoever to act under Section 100.3(D)(2). For example, you need not prohibit the attorney from prosecuting cases in your court and you need not disclose the second-hand information you received to anyone. Further, you may continue presiding in the attorney’s cases as long as you believe you can be fair and impartial.

         The Committee notes that, as always, even where a judge is not ethically required to take “appropriate action” in discharge of his/her Sec. 100.3(D)(2) disciplinary responsibilities, he/she, in his/her sole discretion, may nonetheless voluntarily undertake actions he/she believes appropriate under the circumstances.

         Enclosed, for your convenience, are Opinions 15-138/15-144/15-166 and 10-85 which address this issue.

                                       Very truly yours,

George D. Marlow, Assoc. Justice

Appellate Division, First Dept. (Ret.)

Committee Co-Chair

                                       Hon. Margaret T. Walsh

                                       Family Court Judge

                                       Acting Justice of the Supreme Court

                                       Committee Co-Chair

Encls.