Opinion 17-06

March 15, 2017

Dear :

          Your inquiry (17-06) asks if you are ethically obliged to take further action against an interpreter in your court whom defense counsel accused of giving legal advice to his/her client. Criminal defense counsel advised the prosecutor and you, off-the-record, that a court-certified interpreter, a licensed attorney, who, beyond mere translation, gave the defendant legal advice.

         You say you have no direct knowledge if this is true, you advised counsel the interpreter would no longer be used in the action, and you would entertain any legal application counsel might deem appropriate. You also advised the interpreter of the complaint who “adamantly denied the allegation.” Nonetheless, you advised him/her of the narrow scope of the duties of an interpreter, and you notified a more senior judge of the incident. The case is over, and defense counsel never sought to further address the alleged misconduct.

         Judges must always act to promote public confidence in the judiciary’s integrity and impartiality (see NYCRR 100.2[A]). Thus, if a judge is informed of 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 NYCRR 100.3[D][2]). The Committee generally advises judges they must determine if there is a substantial likelihood an attorney committed a substantial violation of the Rules of Professional Conduct since a judge is in the best position to evaluate and assess all relevant, known circumstances.

         Where, as here, a judge has no direct knowledge at all of any details of the attorney’s alleged misconduct, the judge has wide discretion to initially decide if there is a substantial likelihood of a substantial violation, under all facts the judge knows. A judge has no duty to investigate the allegations’ truth.

         Here, the person at issue is apparently both a court-certified court interpreter and licensed attorney. Under these facts, the Committee believes you have already taken appropriate measures regarding this attorney. Therefore, you need nothing more, even if you conclude (in your sole discretion) the two-prong test is met.

         Enclosed, for your convenience, are Opinions 16-132; 15-119; and 10-85 which address this issue.

                                                 Very truly yours,

                                                 George D. Marlow, Assoc. Justice

                                                 Appellate Div., First Dep’t (Ret.)

                                                 Committee Co-Chair

                                                 Hon. Margaret T. Walsh

                                                 Family Court Judge

                                                 Acting Justice, Supreme Court

                                                 Committee Co-Chair

Encls.