Opinion 17-90

August 11, 2017

Dear :

         This responds to your inquiry (17-90) asking about certain reporting obligations after learning a law firm altered an order of protection you issued against their client. At a hearing on the issue, a partner stated the client asked a paralegal to fill out a “form” requested by the police so he/she could access his/her belongings. Without ever looking at the document, the associate handling the case told the paralegal to fill out the “form”. Since the “form” was, in fact, the judge’s order of protection, the paralegal then altered the order by handwriting a clause allowing the client access. The partner acknowledged the seriousness of the misconduct and has revised firm procedures to prevent any recurrence.  At the hearing, the ADA stated his/her office did not know about nor consent to the alteration.

         Based on these circumstances, you inquire 1) whether you must report this conduct to the DA’s office and, if so, whether this is satisfied by the ADA’s presence at the hearing; 2) whether you must report the law firm, partner, and/or associate to the grievance committee; and 3) whether you must take further action.

Question 1

         The Rules Governing Judicial Conduct are silent regarding a judge’s obligation to report a non-attorney for misconduct (22 NYCRR part 100). Accordingly, we have previously advised that a judge is “under no obligation to report [a non-attorney’s] misconduct to any authority, but may do so in his/her discretion” (Opinion 07-144). Because the individuals most directly responsible for altering the order (the client and the paralegal) are not attorneys, you have no obligation to report them to any authority. Additionally, the Committee has never previously required a judge to report anyone to the District Attorney and declines to do so here (cf. Opinion 15-153 [declining to impose a requirement to report an individual to the probation department]). In any event, the District Attorney’s Office was represented at the hearing and was made aware of the admitted misconduct. Therefore, you have no obligation to notify the District Attorney’s Office.

Question 2

         The Rules Governing Judicial Conduct obligate a judge to take appropriate action when he/she receives information indicating a substantial likelihood that a lawyer has committed a substantial violation of the applicable ethical code or rules (see 22 NYCRR 100.3[D][2]). This decision is ordinarily within the judge’s sole discretion. However, sometimes, the ethics violation is “so clearly serious or egregious that the Committee has said a judge should report it to a disciplinary authority” (Opinion 07-129). In a similar situation in which attorneys altered a signed stipulation by adding language that had been specifically rejected by the court, the Committee advised that (02-85):

If the judge ... concludes that the attorneys involved engaged in a deliberate deception, intended to perpetrate a fraud and deceive the parties and/or the court as to whether the additional language was now an order of the court, the appropriate action is clear: the matter should be reported to the attorney disciplinary committee.

         In our view, the conduct as described is also clearly serious and egregious because it implicates the lawyer’s honesty, trustworthiness and fitness to be a lawyer. Indeed, this scenario raises the troubling possibility that (a) the law firm, through one or more of its employees, deliberately sought to deceive the court, law enforcement, and the individual in whose favor the order of protection was granted, in defiance of court directives, and/or one or more responsible attorneys allowed this situation to occur through extreme carelessness in failing to supervise their subordinates. While you are, of course, in the best position to assess whether your observations and conclusions about the situation are accurate, the seriousness of the conduct is “of a kind best sorted out by an independent agency with investigative capability” (Joint Opinion 05-105/05-108/05-109). Therefore, if you believe the facts as presented to the Committee are true, you should report the conduct to the appropriate disciplinary committee for investigation.

         If you decide to so report, you must disqualify yourself in all matters where the law firm appears while the disciplinary matter is pending and for two years thereafter. In order to protect the attorneys’ right to confidentiality, you may not reveal the reason for disqualification. Therefore, remittal of disqualification is not available, either while the disciplinary matter is pending or for two years thereafter if the matter is resolved in the law firm’s favor.

Question 3

         A judge has no obligation to investigate the truth of allegations of misconduct. Therefore, no further action, other than set forth herein, is required.

         Enclosed, for your convenience, are Opinions 17-07; 15-153; 09-142; 08-183/08-202/09-112; 07-144; 07-129; 05-105/05-108/05-109; and 02-85 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.