Opinion 19-26

July 30, 2019

Dear :

         This responds to your inquiry (19-26) asking several questions arising from your tenant’s possible criminal activity on premises you own as the sole member of a limited liability company (LLC). You advised the local police chief of your concerns, and now ask if you have “any further obligations pending the criminal investigation.” You also ask if you must (a) evict the tenant if the tenant terminates the specific employee(s) involved and/or (b) send a letter advising the tenant that “any further immoral or illegal acts” on the part of the tenant or his/her employees, “will be grounds for an immediate termination of the lease. Assuming no formal criminal charges are brought, you ask if you must send a letter advising the tenant, “if there is any credible evidence” of illegal activity on the premises, you will immediately terminate the lease; and if you must do anything further.

         A judge who “receives information indicating a substantial likelihood” that a lawyer or another judge “has committed a substantial violation” of the applicable professional ethics rules must take “appropriate action” (see 22 NYCRR 100.3[D][1]-[2]) . We have previously advised that a judge has no disciplinary obligation to report a non-lawyer or non-judge if the judge receives information that apparently illegal conduct has occurred (see Opinion 13-35). We have advised that a judge may do so in his/her discretion (see Opinions 16-154; 07-144; 03-110).

         We have also previously advised that a judge is not precluded from bringing an action on his/her own behalf in a court having jurisdiction of the action so if you determine to take legal action as the sole owner of the LLC, you are not prohibited from doing so (see Opinions 09-12; 03-139; 90-11).

         All remaining issues are primarily legal in nature. Because the Committee is authorized to answer questions about judicial ethics (see 22 NYCRR 101.1), such legal questions are outside the Committee’s jurisdiction and therefore, the Committee cannot respond (see Judiciary Law § 212[2][l]; Opinion 07-186).

         Enclosed for your convenience, are Opinions 16-154; 13-35; 09-12; 07-186; 07-144; 03-139; 03-110; and 90-11, which address this issue.

                                                 Very truly yours,

                                                 George D. Marlow, Assoc Justice                                                                     Appellate Div., First Dept. (Ret)

                                                 Committee Co-Chair

                                                 Hon. Margaret T. Walsh

                                                 Supreme Court Justice

                                                 Committee Co-Chair

Encs.