Opinion 18-58

March 29, 2018

Digest:         (1) A judge may continue to preside in a case after reporting one of the attorneys to a bar association’s lawyer assistance committee, provided the judge can be fair and impartial. (2) A judge who receives information indicating a substantial likelihood that an attorney has substantially violated the requirement of competence under the Rules of Professional Conduct must take appropriate action. What action is appropriate under the circumstances is ordinarily left to the judge’s discretion. However, if the judge determines the attorney’s condition is egregious and seriously calls into question the attorney’s fitness as a lawyer, the attorney’s condition must be reported to the grievance committee. (3) Even if the judge concludes that reporting to the attorney grievance committee is mandatory under the circumstances, the judge may 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.

Rules:          Judiciary Law § 499; 22 NYCRR 100.2(A); 100.3(D)(2); 100.3(E)(1); pt 1200, Rule 1.1(a)-(b); Opinions 17-56; 15-139/15-144/15-166; 14-88; 10-85; 08-198; 07-129.

Opinion: 

         The inquiring judge has serious concerns about an attorney appearing before him/her pursuant to a fiduciary appointment, as the attorney seems unable to perform basic functions necessary to discharge his/her responsibilities and is “disorganized and occasionally distraught” and admittedly “struggling to keep up.” For example, the attorney submitted “wholly inadequate” accountings that failed to address issues as directed in a prior court order. The judge and his/her court attorney met with the attorney several times to provide guidance, but the attorney failed to file an amended accounting. Further, once the judge suspended the attorney’s fiduciary appointment and directed that an accounting be completed and served upon all interested parties, the attorney failed to comply with the judge’s detailed written and verbal instructions on proper service. The judge has now contacted a bar association’s lawyer assistance program about the attorney’s condition and, at their recommendation, urged the attorney to seek assistance from the program (see generally Judiciary Law § 499 [providing certain protections for participants in lawyer assistance committees]).¹ The judge asks if he/she may continue to preside in the case.

         A judge must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). If a judge receives information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Rules of Professional Conduct, the judge must take “appropriate action” (22 NYCRR 100.3[D][2]). A judge also must disqualify him/herself from any proceeding in which his/her “impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]), including where specifically required by rule or statute. Where disqualification is not mandatory, the judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).

          As an initial matter, we believe that referring an attorney to the lawyer assistance committee is entirely different from referring him/her to an attorney grievance committee. Critically, as its name suggests, the lawyer assistance committee is intended to help attorneys, rather than discipline them. We do not believe the judge’s impartiality can “reasonably be questioned” (22 NYCRR 100.3[E][1]) merely because he/she has referred a struggling attorney to a confidential program designed to help lawyers overcome addiction or mental health issues (cf. Judiciary Law § 499). Accordingly, a judge may continue to preside in a case after reporting an attorney to the lawyer assistance committee, provided he/she can be fair and impartial.

         This does not end the analysis, however, as we must also consider the judge’s disciplinary obligations under section 100.3(D)(2). Attorneys in New York are expected to “provide competent representation to a client,” meaning they should have, or acquire, “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation” (22 NYCRR 1200, Rule 1.1[a]). As a matter of professional ethics, “[a] lawyer shall not handle a legal matter that the lawyer knows or should know that the lawyer is not competent to handle, without associating with a lawyer who is competent to handle it” (id., Rule 1.1[b]). We thus conclude a judge’s disciplinary responsibility applies not only to misfeasance, malfeasance and nonfeasance by an attorney, but also to an attorney’s competence.

              We have generally advised inquiring judges to determine whether there is a substantial likelihood that an attorney committed a substantial violation of the Rules of Professional Conduct because they are in the best position to evaluate and assess all relevant, known circumstances (see Opinions 10-85; 08-198; 07-129).

              Here, too, this judge must assess if he/she has received information indicating a substantial likelihood the lawyer has committed a substantial violation of the Rules of Professional Conduct’s competence requirements. If so, the judge must take some “appropriate action” (22 NYCRR 100.3[D][2]). The purpose of the reporting requirement 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 Opinion 10-85). Thus, if the misconduct, if true, seriously calls into question the attorney’s honesty, trustworthiness or fitness as a lawyer, the only fitting action is to report him/her to the appropriate disciplinary authority (see id.). But in all other instances, the judge has discretion to take appropriate measures short of referral for disciplinary action (see id.). Such measures may include, but are not limited to, counseling and/or warning a lawyer, reporting a lawyer to his/her employer, and sanctioning a lawyer (see id.).

We emphasize a judge is not ethically obliged to investigate to determine seriousness of any possible misconduct (see id.).

              Here, the judge has taken significant affirmative steps, by suspending the attorney’s fiduciary appointment, giving guidance and direction to the attorney, consulting with the lawyer assistance committee, and suggesting the attorney seek assistance from a lawyer assistance committee to rectify his/her apparent problematic condition. Such steps will ordinarily satisfy the judge’s obligation to take “appropriate action” (see 22 NYCRR 100.3[D][2]), but we believe the described conduct is serious enough for the judge to also carefully consider if the attorney’s conduct rises to the level of mandatory reporting.

         To determine this, the judge should assess all the known facts, including but not limited to the judge’s impression of whether this is a single anomalous situation or an ongoing prevailing condition. If the judge concludes the attorney’s condition or conduct seriously calls into question his/her fitness as a lawyer, the judge must report him/her to the grievance committee (see generally Opinion 10-85).

Note on 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 (see Opinions 17-56; 15-138/15-144/15-166). The disqualification may not be remitted, unless the attorney waives confidentiality or the grievance committee issues a published disciplinary opinion (see Opinions 17-56; 14-88; 15-138/15-144/15-166).

         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.

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¹ The statute refers to a “lawyer assistance committee sponsored by a state or local bar association” (Judiciary Law § 499[1] [emphasis added]), but they are commonly referred to as “lawyer assistance programs” (see www.nylat.org [emphasis added]).