Opinion 18-29
March 29, 2018
Digest: A judge with personal knowledge that an attorney has made perjurious statements in an affirmation must report the attorney to the appropriate attorney disciplinary committee.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(D)(2); 100.3(E)(1); Opinions 16-46; 15-231; 14-88; 13-77; 13-64; 13-61; 10-122; 10-85; 09-142; 08-183/08-202/09-112; 07-129; 02-85.
Opinion:
A full-time judge asks about his/her obligations arising from an affirmation filed by an attorney under penalty of perjury, which contains numerous factual allegations about the judge’s conduct that the judge knows to be false. The affirmation also contains numerous additional assertions which the judge believes are likely false, and the judge further believes that the attorney, apart from the perjury, may also have separately violated the Rules of Professional Conduct by failing to familiarize himself/herself with applicable court rules and procedures.
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]). Therefore, a judge who has information indicating a “substantial likelihood” that a lawyer has committed a “substantial violation” of the Rules of Professional Conduct must take “appropriate action” (22 NYCRR 100.3[D][2]). If the misconduct is so serious that it calls into question the attorney’s honesty, trustworthiness, or fitness as a lawyer, the judge must report the conduct to the appropriate disciplinary authority (see Opinion 10-85).
We have consistently advised that when a judge has substantial knowledge that an attorney has intentionally made false material statements under oath, such conduct calls into question the attorney’s honesty, trustworthiness, or fitness as a lawyer, and must be reported to the appropriate attorney disciplinary committee (see Opinions 07-129 [attorney admitted perjury under oath; judge must report]; 13-77 [attorney admitted in a sworn complaint that he/she had advised a client that the client’s law suit was settled when, in fact, the attorney had discontinued the suit and paid the client the purported settlement amount from the attorney’s own, personal funds; judge must report]; see also Opinions 16-46 [if judge concludes that another judge’s inconsistent sworn testimony constituted perjury or intentional deception, judge must report to Commission on Judicial Conduct]; 09-142 [if judge believes that attorney “deliberately sought to deceive the court and his/her own client,” judge must report]; 02-85 [if judge concludes that attorney has “engaged in a deliberate deception, intended to perpetrate a fraud and deceive the parties and/or the court …, the appropriate action is clear: the matter should be reported to the attorney disciplinary committee”]; 14-88 [attorney testified under oath that he/she used a fictitious bank account to shield his/her law firm income from court-ordered child support payments; judge must report]).
Here, where the judge has personal knowledge that the attorney made perjurious statements in an affirmation, the judge must report the attorney to the appropriate attorney disciplinary committee.
After reporting the attorney, the judge must disqualify him/herself in all matters where the attorney appears, both while the disciplinary matter is pending and for two years thereafter (see 22 NYCRR 100.3[E][1]; Opinions 13-61; 10-122; 09-142). To protect the attorney’s right to confidentiality, the judge may not reveal the reason for the disqualification (see Opinion 08-183/08-202/09-112). Therefore, remittal of disqualification is not available (see Opinion 13-64), unless the attorney waives confidentiality or the grievance committee issues a public disciplinary decision (see Opinion 08-183/08-202/09-112).
In light of this broad disqualification requirement, we have previously advised that a judge may, in his/her discretion, wait until the proceeding ends to report the attorney (see Opinion 15-231).