Opinion 17-07

April 21, 2017

Dear :

         This responds to your inquiry (17-07) asking about your disciplinary obligations concerning two individuals.

1. The first individual is a real estate agent who forged your name on a letter of reference, mentioned your judicial status in the letter, and submitted the letter to a co-op board without your knowledge or consent.

Sections 100.3(D)(1)-(2), which set forth a judge’s disciplinary obligations, refer to misconduct by “a lawyer” or “another judge” (22 NYCRR 100.3[D][1]-[2]). As the alleged wrongdoer is neither a judge nor an attorney, it is entirely within your discretion whether to report the conduct to his/her employer, a real estate licensing board, and/or any other authority.

2. The second individual is an attorney you have never met, seen, or interacted with. However, based on information from your relative(s), you believe the attorney may be practicing law in New York, where he/she is not admitted to practice, and/or in another state, where he/she is administratively suspended. Moreover, you are concerned that the attorney may be improperly holding escrow funds that should be released to your relative.

         A judge who receives information indicating a “substantial likelihood” that an attorney “committed a substantial violation of” the Rules of Professional Conduct must take “appropriate action” (22 NYCRR 100.3[D][2]). However, the judge has no obligation to investigate the truth of the allegations of misconduct, or to investigate its severity or seriousness.

Determination of whether the “substantial likelihood” prong is met is ordinarily left to the judge’s discretion, as the judge is ordinarily in the best position to evaluate and assess all relevant and known circumstances, including the information’s reliability, which is especially important where the information is based solely on hearsay.

If the “substantial likelihood” prong is not met, the judge is not ethically required to take any action, although he/she may do so in his/her discretion.

Conversely, if the judge concludes, in his/her sole discretion, that the “substantial likelihood” prong is met, he/she must then consider whether the “substantial violation” prong is also met. Again, whether the second prong is met is up to the judge to determine in his/her discretion since he/she is in the best position to evaluate and assess all relevant, known circumstances. In making this determination, the judge may consider a wide variety of factors including, but not limited to, “the experience level of the attorney, whether the violation appears to have been inadvertent or willful, whether it appears to be part of a larger pattern of improper behavior or an isolated incident, whether it reflects adversely on the individual’s honesty, trustworthiness, and fitness as a lawyer, and whether the violation, if it occurred as described, is likely to undermine public confidence in lawyers…if not investigated [by the appropriate authority] or addressed” (Opinion 15-138/15-144/15-166).

         If the judge is not certain that the conduct violates the applicable rules of conduct or concludes that the alleged misconduct is not substantial, the judge need not take further action, although the judge may do so, in his/her discretion.

If the judge concludes that both prongs of the Rule are met, the judge must determine what action is “appropriate” under the known, relevant circumstances (see Opinion 13-127). This determination is ordinarily left to the judge’s discretion (see id. [providing examples of appropriate action]).¹ Reporting the misconduct is not mandatory unless the judge concludes “the alleged misconduct is so egregious that it seriously calls into question the attorney’s honesty, trustworthiness or fitness as a lawyer” (id.). If the judge concludes the conduct reaches that threshold, the only appropriate action is to report the attorney.

         Enclosed, for your convenience, are Opinions 15-138/15-144/15-166; 14-122; 13-127; and 10-106 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.

________________________

         ¹ The Committee emphasizes that it cannot comment on whether you have “substantial knowledge” of a “substantial violation” by an attorney you have never met, since you have no personal knowledge of the underlying circumstances. Thus, it is exclusively in your discretion to determine whether the two-prong test is satisfied here, based on the information you already have; and you have no duty to investigate. However, if you ultimately conclude that both prongs are met, you will then need to determine what action is appropriate under the circumstances. If you reach this stage, you may wish to consider statutes and cases such as Judiciary Law §§ 478; 468-a(5); Matter of Fiore, 227 AD2d 79 (2d Dep’t 1996); and/or Matter of Carlisi, 189 AD2d 346 (2d Dep’t 1993). If you conclude that these or other legal authorities apply, the Committee recommends you take them into consideration in determining what action is appropriate.