Opinion 19-107

October 24, 2019

Digest:         (1) On these facts, where a judge, in the course of his/her judicial duties, becomes aware of a party’s apparent attempt to undermine the judge’s judicial decision by filing a declaratory judgment action in another court and seeking a default judgment without disclosing related actions, the judge may, but is not required to, inform the other judge of the relevant facts. If the judge chooses to contact the other judge, he/she must do so in writing and copy both sides.

(2) Where the judge further concludes the attorney-defendant and his/her counsel both deliberately submitted materially false documents in an apparent attempt to hinder an unrepresented judgment creditor’s efforts to collect a lawful judgment through fraud or deception, the judge must report both attorneys to the grievance committee.

(3) The judge may wait until the conclusion of the proceeding before reporting the attorneys.

Rules:          Judiciary Law § 14; 22 NYCRR 100.1; 100.2; 100.2(A); 100.3(B)(6); 100.3(D)(2); 100.3(E)(1); Opinions 18-29; 17-90; 16-46; 15-231; 14-144; 14-88; 13-77; 10-85; 09-142; 05-105/05-108/05-109; 02-85.

Opinion:

         The inquiring judge granted a litigant’s pro se application to confirm an arbitration award against his/her former attorney, and the order was affirmed on appeal.¹ Contempt proceedings have commenced, as the attorney-defendant’s responses to the ex-client’s information subpoenas were “so inadequate, especially coming from an attorney, as to be contemptuous on [their] face in several respects.” The judge adjourned the contempt hearing to give the attorney-defendant an opportunity to comply with the information subpoenas. By chance, the judge learned that, instead, the attorney-defendant and his/her counsel not only filed an action in Supreme Court seeking a declaration that the attorney-defendant did not owe the money awarded by the arbitration panel, but then also sought a default judgment because the ex-client failed to verify his/her pro se answer.² On the Request for Judicial Intervention (RJI), the attorney-defendant’s counsel did not disclose any related proceedings, such as the order confirming the arbitration award and the ex-client’s ongoing efforts to enforce the information subpoenas. The judge asks initially if he/she may, or must, inform the justice assigned to the Supreme Court matter that the RJI application appears to be perjurious. The judge further asks if he/she must report the attorney-defendant’s counsel to the grievance committee for his/her “omission of ‘related matters’ … under penalty of perjury on the RJI application.” The judge subsequently clarified that he/she seeks guidance on what constitutes “appropriate action” on these facts. After submitting the initial inquiry, the judge disclosed his/her concerns to both sides at a case conference. Although the judge did not find the immediate reaction of the attorney-defendant and his/her counsel entirely reassuring, they subsequently resolved the issue to the judge’s satisfaction by disclosing all related actions to the other court, making a full apology to the judge and the ex-client, and paying the ex-client the full amount awarded by the arbitrators.

         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]). Among other things, a judge must respect and comply with the law (see 22 NYCRR 100.2[A]), must uphold the judiciary’s integrity and independence (see 22 NYCRR 100.1), and must accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law (see 22 NYCRR 100.3[B][6]). In addition, 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]). A judge must disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]) and in other specific circumstances as required by rule or by law (see generally id.; Judiciary Law § 14).

Disclosure to the Other Judge

         While omissions of related matters on an RJI might ordinarily reflect mere negligence, this judge believes he/she may have discovered an attempted fraud on another court in the course of his/her judicial duties and, moreover, one seemingly designed to interfere with matters properly before the inquiring judge. Accordingly, we believe this judge may, in his/her sole discretion, bring the relevant facts to the attention of the other judge. Should the judge choose to make this disclosure, he/she should do so in writing and copy both parties to avoid any possible appearance of an improper ex parte communication concerning a matter before another judge (see generally 22 NYCRR 100.3[B][6]).

         As we do not believe the judge’s impartiality can “reasonably be questioned” here, the judge may continue to preside if he/she can be fair and impartial (22 NYCRR 100.3[E][1]).³

Appropriate Action

         With respect to the judge’s disciplinary obligations, the judge has apparently concluded he/she has information indicating a “substantial likelihood” of a “substantial violation” of the Rules of Professional Conduct (22 NYCRR 100.3[D][2]), leaving only the question of what constitutes “appropriate action” under the circumstances presented (id.). Ordinarily, that determination is left to the judge’s discretion; reporting is mandated only if the conduct is so egregious that it “seriously calls into question the attorney’s honesty, trustworthiness or fitness as a lawyer” (see Opinion 10-85).

         Applying that standard, we have required reporting where a judge concludes the “attorneys involved engaged in a deliberate deception, intended to perpetrate a fraud and deceive the parties and/or the court” (Opinion 02-85; see also e.g. 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]; 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]; 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]; 17-90 [reporting required where law firm employee altered the judge’s order of protection, in circumstances suggesting it “deliberately sought to deceive the court” and others “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”]).

         We cannot judge the credibility of facts set forth in the inquiry and are not empowered to do so, nor is the inquiring judge necessarily equipped to investigate them (see Opinion 05-105/05-108/05-109). Nonetheless, the inquiry reveals the judge’s strong concerns that the attorney-defendant and his/her counsel both deliberately submitted materially false documents in an attempt to hinder a judgment creditor’s efforts to collect a lawful judgment through fraud or deception.⁴ On these facts, we conclude the judge must report both attorneys to the grievance committee. Although the judge is satisfied with the attorneys’ remedial actions, there is no indication they would have renounced their scheme had the judge not happened to learn of it in time. We believe the seriousness of the conduct is “of a kind best sorted out by an independent agency with investigative capability” (Opinion 05-105/05-108/05-109). Therefore, the judge should report the conduct to the appropriate disciplinary committee for investigation.

         Finally, the judge may wait until the conclusion of the matter before making the report (see e.g. Opinion 15-231). As noted in Opinion 18-29 (citations omitted):

After reporting [an] 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. To protect the attorney’s right to confidentiality, the judge may not reveal the reason for the disqualification. Therefore, remittal of disqualification is not available, unless the attorney waives confidentiality, or the grievance committee issues a public disciplinary decision.

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¹ A second appeal, from the judge’s amended order, remains unperfected. We have simplified the facts by referring to multiple litigants on one side as a single person..

² The ex-client was apparently confused by the default judgment application and brought the papers to the court clerk to help identify them. The court clerk noticed they were captioned in Supreme Court and approached the judge for guidance.

³ We thus distinguish Opinion 14-144, where we concluded, under the particular circumstances therein, “the inquiring judge’s impartiality might reasonably be questioned in the criminal and civil matters involving Witness/Defendant.”

⁴ While we do not know if counsel formally consulted the attorney-defendant about the RJI or the overall litigation strategy, we note the attorney-defendant’s own responses to the ex-client’s information subpoenas, even after court intervention, were apparently “contemptuous on [their] face.”