Opinion 18-170

December 11, 2018

Digest:         A judge who has personal knowledge that a prosecutor has failed to make certain disclosures to the defense must determine, based on facts and circumstances known to the judge, whether there is a substantial likelihood the attorney’s actions constitute a substantial violation of the Rules of Professional Conduct and, if so, must take appropriate action. The judge may, in his/her discretion, wait until the proceeding ends to take any such action.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(D)(2); Opinions 18-74; 18-58.

Opinion:

         The inquiring judge states the district attorney’s office has not made certain disclosures to defense counsel about financial and other alleged connections between a local not-for-profit organization and the prosecution’s frequent expert witness. The judge asks if he/she must make any disclosures to defense counsel.

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

         We are unaware of any authority requiring a judge to “remedy” an alleged deficiency in the prosecutor’s disclosures concerning an expert witness by making those disclosures to defense counsel sua sponte. However, this does not necessarily end the analysis, as we must also consider the judge’s possible disciplinary obligations under Section 100.3(D)(2). As described in Opinion 18-74 (citations and paragraph break omitted):

The inquiring judge is ordinarily in the best position to decide if there is a “substantial likelihood” another judge has committed a “substantial violation” of the Rules, “given the context in which the conduct occurs.” If he/she concludes either of these two elements is missing no action is required. If the judge concludes there is a substantial likelihood another judge engaged in a substantial violation of the Rules, the action he/she must take will depend on the nature of the misconduct. Thus, if it is so serious as to call into question a judge’s fitness to continue in office, the judge must report it to the Commission on Judicial Conduct. But, if the misconduct, though substantial, is not that serious, the judge has the discretion to take other, less severe action than reporting the conduct to the Commission. As we have previously noted, the Committee “cannot judge the credibility of conflicting allegations and is not empowered to do so.”

If the judge concludes that both prongs are satisfied (id. [citation omitted]):

In general, “what determines ‘appropriate action’ depends upon all the surrounding circumstances known to the judge, including an assessment of whether the individual, if confronted by the judge, shows genuine remorse, contrition, or ignorance of a rule; whether the individual has any history of unprofessional or other conduct in violation of the Rules; or any other relevant conduct or factor known to the judge.” Appropriate action could include, for example, “dealing with the matter administratively,” “discussing with the other judge the possibility of a treatment program and/or making a suitable referral thereto,” or “discussing the situation with the other judge and counseling him/her on the ethics of the claimed inappropriate conduct and then deciding what if anything else should be done depending on the judge’s response to such advice.”

         On these facts, we cannot determine if the two-prong test is satisfied, or (if so) what action will be appropriate. Thus, each determination must be left entirely to the judge’s discretion.

         Nonetheless, as we have done in some prior opinions (see e.g. Opinion 18-58), we here offer some observations to help guide the judge’s exercise of discretion.

         First, because we do not know if the DA has an obligation to make the described disclosures, we emphasize the judge is not ethically required to take any action under Section 100.3(D)(2) unless he/she concludes that the DA’s office has an ethical obligation to make the described disclosures, and that nondisclosure is a substantial violation of the Rules of Professional Conduct. These decisions are within the judge’s discretion. For example, if the judge is uncertain the DA is ethically obliged to make the described disclosures, he/she need not take action under Section 100.3(D)(2). However, the judge may, in his/her sole discretion, take any ethically permissible steps to address the alleged conduct, including, e.g., raising the issue on the record in a pertinent pending case and asking counsel to brief it.

         Second, even if this judge concludes he/she must take “appropriate action” under Section 100.3(D)(2), we emphasize the judge ordinarily has wide discretion to decide what action will be appropriate under these facts and thus may wait until the matter ends to take any such action. For example, the judge could consider whether it is appropriate to raise the issue on the record, counsel or warn the prosecutor, report him/her to a superior in the DA’s office, or take other steps. Reporting to the grievance committee is required only if the judge concludes the prosecutor’s failure to disclose is essentially a fraud on the court or other willfully deceptive conduct, calling into question the prosecutor’s honesty, trustworthiness, or fitness to practice law.

         Third, in case the judge decides to report a prosecutor to the grievance committee, we repeat our note from Opinion 18-58 (citations omitted) on the implications and timing of reporting:

Again, we do not now decide whether this attorney should or must be reported to the grievance committee; that is best left to the judge’s sound discretion. However, if the judge refers a complaint against the attorney, the judge is disqualified in all cases involving him/her while the disciplinary matter is pending and for two years thereafter. The disqualification may not be remitted, unless the attorney waives confidentiality or the grievance committee issues a published disciplinary opinion.

Finally, we note that even if the judge concludes reporting to the attorney grievance committee is mandatory under the circumstances, the judge may decide to wait until after the case is over before making the report, in order to avoid the need for immediate disqualification in all matters involving the attorney.