Opinion 17-158

December 7, 2017

Digest:         A judge who believes an attorney has revealed the name of the respondent judge in a disciplinary investigation (1) need not report the attorney to the Commission on Judicial Conduct; (2) has wide discretion to determine whether the information received reveals a substantial likelihood the lawyer committed a substantial violation of the Rules of Professional Conduct and, if so, what action is appropriate; and (3) may, in his/her sole discretion, direct the attorneys not to reveal the identity of the respondent judge and remind them of the Commission’s confidentiality requirements.

Rules:          NY Const, art VI, § 22; Judiciary Law §§ 44(4); 45; 90(2); 22 NYCRR 100.2(A); 100.3(D)(2); Opinions 16-159; 15-138/15-144/15-166; 10-85; 08-08.

Opinion:

         The inquiring judge recently received from counsel an affirmation of unavailability in a case. The attorney annexed a subpoena from the Commission on Judicial Conduct directing him/her to appear and testify on a particular day, as well as an email to another attorney stating that he/she is “forced by subpoena to appear in a hearing against a judge” and requesting an adjournment date. Although the subpoena itself does not reveal the name of the respondent judge, and the attorney did not type the respondent’s name in his/her cover email, the inquiring judge believes the respondent’s surname is revealed in the email printout as the file name of the attachment.¹ The judge would like to direct the attorneys to appear before him/her and instruct them “not to divulge any information regarding the judge whose name appears on the email and remind them of their responsibility to maintain confidentiality of the Commission’s proceeding.” The judge further asks if he/she must report the attorney’s apparent breach of confidentiality to the Commission on Judicial Conduct and/or to the attorney disciplinary committee.

         We note initially the Commission exists to “receive, initiate, investigate and hear complaints” concerning the conduct of “any judge or justice of the unified court system” (NY Const, art VI, §22); complaints concerning attorney misconduct are handled by the appropriate appellate division disciplinary or grievance committee (see Judiciary Law § 90[2]). The judge therefore need not report the attorney to the Commission.

         A judge must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge who receives information indicating a “substantial likelihood” that an attorney has committed a “substantial violation” of the Rules of Professional Conduct must take “appropriate action” (see 22 NYCRR 100.3[D][2]).

         A judge has no duty to investigate an attorney’s alleged misconduct. Each stage of any analysis is ordinarily confined to the judge’s discretion (see Opinion 16-159), since the judge receiving the information is generally in the best position to evaluate and assess all relevant, known facts, including but not limited to whether the potential violation appears inadvertent or willful (see Opinion 15-138/15-144/15-166). We have occasionally advised that a judge must report a lawyer’s alleged misconduct to a disciplinary authority, but only where both prongs were clearly satisfied on the facts presented and the misconduct seriously called into question the attorney’s honesty, trustworthiness or fitness as a lawyer (see Opinion 10-85). In essence, the goal is not to punish attorneys for the slightest deviation from perfection, but to protect the public from attorneys who are unfit to practice law (see id.).

         While the Commission’s records and proceedings are strictly confidential (see Judiciary Law §§ 44[4], 45), it is unclear on the facts presented if the attorney was aware of the Commission’s confidentiality rules or even realized his/her email might reveal the respondent’s name, since the subpoena did not facially identify the respondent. Nothing here suggests it was inherently unreasonable for the lawyer to attach the subpoena to an email asking his/her adversary for a new date, and then to annex the email and attachment to his/her affirmation of unavailability.

         Thus, we cannot say this judge has “receive[d] information indicating a substantial likelihood that a lawyer has committed a substantial violation” of attorney ethics rules (22 NYCRR 100.3[D][2]), let alone one rising to a level of mandatory reporting. Thus, the judge has wide discretion to conclude if each prong is satisfied, and, if so, what action is “appropriate” on these facts (see e.g. Opinion 10-85). We stress, if he/she is not certain the attorney’s conduct violates applicable ethics rules, or concludes the conduct is insubstantial or a mere technical violation, he/she need not act (see Opinion 15-138/15-144/15-166); though he/she still may in his/her sole discretion (see Opinion 08-08 [mentioning a range of options]).²

         Finally, whether this judge concludes action is warranted by Section 100.3(D)(2), the judge may, in his/her sole discretion, direct the attorneys to appear before him/her, instruct them not to reveal the respondent’s identity, and remind them of the Commission’s confidentiality requirements.

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¹ That is, whoever scanned the subpoena to a computer file saved it in the form “LastName.pdf,” thus presumably revealing the respondent’s surname.

² As always, if the judge ultimately files a complaint against the attorney, the judge must disqualify him/herself in all cases involving that attorney while the disciplinary matter is pending and for two years thereafter (see Opinion 15-138/15-144/15-166).