Opinion 19-35
March 14, 2019
Digest: Where an attorney who practices in a specialized part manifests extremely rude, malicious, and belligerent behavior that, if true, appears to raise serious concerns about the attorney’s fitness to practice law:
(1) the propriety of transferring the attorney’s cases to another venue is a legal or administrative question the Committee cannot address;
(2) the attorney’s threats and complaints, without more, do not require any judge to disqualify him/herself, as long as that judge believes he/she can be fair and impartial;
(3) a judge who questions his/her own ability to be fair and impartial in matters involving the attorney must disqualify him/herself from the attorney’s cases, and remittal is not available;
(4) each judge must consider whether his/her own personal knowledge of the attorney’s overall alleged misconduct and unfitness to practice law as described in the inquiry is sufficiently reliable to satisfy the “substantial likelihood” prong and, if so, he/she must report the attorney;
(5) a judge who concludes that he/she is not ethically required to report the attorney may nonetheless exercise his/her discretion to do so; and
(6) a judge who decides to report the attorney is disqualified from the attorney’s cases both while the disciplinary matter is pending and for two years thereafter. During this period, remittal is not available unless the attorney waives confidentiality or the grievance committee issues a published opinion.
Rules: Judiciary Law §§ 14; 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.3(D)(2); 100.3(E)(1); 100.3(E)(1)(a)(I); 100.3(E)(1)(a)-(f); 101.1; Opinions 17-56; 17-07; 16-129; 15-138/15-144/15-166; 14-162(A); 14-121; 14-58; 14-55; 13-83; 13-61; 12-01; 11-86; 09-142; 09-49; 08-170; 07-186; 05-105/05-108/05-109; 99-78; 98-69; 92-114/92-127; People v Moreno, 70 NY2d 403 (1987).
Opinion:
All the judges regularly assigned to a specialized part in a multi-part court write to ask about “any ethical issues” involving the misconduct of an attorney who regularly appears in that part. Each judge is at least generally aware of the attorney’s extremely rude, malicious and belligerent behavior toward judges and other lawyers; some have personal experience as the target of such behavior. For example, one judge has obtained police protection at his/her residence due to apparent stalking. The attorney has also made formal or informal complaints against one or more of the judges. Although their direct personal experience of the attorney differs, all are willing to disqualify themselves, if appropriate. They also note that a judge with administrative or supervisory responsibilities wishes to transfer the attorney’s cases to another county for disposition.
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]). A judge must disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including where the judge has a personal bias or prejudice concerning a party (see 22 NYCRR 100.3[E][1][a][I]) or in other specific circumstances as required by rule or by law (see generally 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14). In addition, a judge who receives information indicating a “substantial likelihood” that an attorney committed a “substantial violation” of the Rules of Professional Conduct must take “appropriate action” (22 NYCRR 100.3[D][2]).
Venue Transfer
The venue transfer issue raised in this inquiry, including the fact that all the judges in a specific part may wish to disqualify themselves, is primarily legal and administrative in nature. Because the Committee is authorized to answer questions concerning judicial ethics (see 22 NYCRR 101.1), such legal and administrative questions are outside our jurisdiction and therefore we cannot respond (see Judiciary Law § 212[2][l]; Opinion 07-186).
Threats and/or Complaints Against Judges
An initial question here is whether the attorney’s history of threatening behavior and making formal and informal allegations of judicial misconduct provides a basis for concluding that a judge’s impartiality might “reasonably be questioned” in matters where the attorney appears (22 NYCRR 100.3[E][1]).
A judge need not disqualify him/herself merely because a litigant has (1) complained about the judge to the Commission on Judicial Conduct, (2) commenced a federal civil rights lawsuit against the judge, and (3) filed a criminal complaint against the judge with the District Attorney’s office, as long as the judge believes he or she can be impartial (see Opinion 98-69).1 Similarly, “a party’s threats of physical violence against a judge do not, without more, cause the judge’s impartiality to reasonably be questioned when that party appears before the judge” (Opinion 14-58 [citing prior opinions]). Indeed, a judge need not disqualify him/herself from a matter even after consulting with court security personnel concerning a threat, provided the judge can be fair and impartial (see Opinion 12-01). Any rule requiring automatic recusal under such circumstances could enable disgruntled litigants and/or attorneys to engage in “judge shopping.” As we explained in Opinion 14-121, “such litigation tactics, if rewarded, could be extraordinarily disruptive in smaller communities with limited access to judicial resources, where merely making baseless complaints against judges could result in changes of venue.” In sum, as noted in Opinion 92-114/92-127 (emphasis added):
There is no ethical requirement that the judge disqualify himself or herself merely by virtue of the fact that the people who appear before the judge have been saying harsh things about the judge and conducting a campaign against him or her. This is not grounds for disqualification unless the judge doubts that he or she can be impartial.
Here, too, the fact that this attorney has asserted multiple claims against judges alleging judicial, civil and criminal misconduct, and/or has committed various threatening or belligerent acts against judges, does not, by itself or cumulatively, provide an adequate basis for mandating disqualification in a proceeding (see e.g. Opinions 14-58; 14-55; 12-01; 11-86; 08-170; 99-78; but see Opinion 13-83 [different result while a protective order is in effect]).
Thus, absent other factors, the determination whether each judge can be fair and impartial in a case involving this attorney is a matter confined solely to the conscience of the particular judge, after consideration of all relevant circumstances, including his/her own personal experience with the attorney, if any (see generally People v Moreno, 70 NY2d 403 [1987]).
We emphasize, however, that if any individual judge doubts his/her own ability to be fair and impartial in matters involving this attorney, he/she must disqualify him/herself, regardless of how other judges in the same specialized part have analyzed the situation.
Disciplinary Obligations
Regarding the attorney’s alleged misconduct, we have summarized a judge’s disciplinary obligations as follows (Opinion 17-07 [citations omitted]):
A judge who receives information indicating a “substantial likelihood” that an attorney “committed a substantial violation of the Rules of Professional Conduct must take “appropriate action.” However, the judge has no obligation to investigate the truth of the allegations of misconduct, or to investigate its severity or seriousness.
Determination of whether the “substantial likelihood” prong is met is ordinarily left to the judge’s discretion, as the judge is ordinarily in the best position to evaluate and assess all relevant and known circumstances, including the information’s reliability, which is especially important where the information is based solely on hearsay.
If the “substantial likelihood” prong is not met, the judge is not ethically required to take any action, although he/she may do so in his/her discretion.
Conversely, if the judge concludes, in his/her sole discretion, that the “substantial likelihood” prong is met, he/she must then consider whether the “substantial violation” prong is also met. Again, whether the second prong is met is up to the judge to determine in his/her discretion since he/she is in the best position to evaluate and assess all relevant, known circumstances. In making this determination, the judge may consider a wide variety of factors including, but not limited to, “the experience level of the attorney, whether the violation appears to have been inadvertent or willful, whether it appears to be part of a larger pattern of improper behavior or an isolated incident, whether it reflects adversely on the individual’s honesty, trustworthiness, and fitness as a lawyer, and whether the violation, if it occurred as described, is likely to undermine public confidence in lawyers…if not investigated [by the appropriate authority] or addressed.”
If the judge is not certain that the conduct violates the applicable rules of conduct or concludes that the alleged misconduct is not substantial, the judge need not take further action, although the judge may do so, in his/her discretion.
If the judge concludes that both prongs of the Rule are met, the judge must determine what action is “appropriate” under the known, relevant circumstances. This determination is ordinarily left to the judge’s discretion. Reporting the misconduct is not mandatory unless the judge concludes “the alleged misconduct is so egregious that it seriously calls into question the attorney’s honesty, trustworthiness or fitness as a lawyer.” If the judge concludes the conduct reaches that threshold, the only appropriate action is to report the attorney.
We have also advised that reporting is mandatory if a judge concludes that an attorney has threatened to file a complaint against the judge in an effort to unduly influence the judge’s judicial determination (see Opinion 13-61) or that an attorney deliberately sought to deceive the court and acted extremely unprofessionally in defiance of court directives (see Opinion 09-142).
Here, each individual judge is, of course, in the best position to assess whether he/she has received information that is sufficiently reliable to meet the “substantial likelihood” prong. Indeed, if a judge has “no direct personal knowledge whatsoever” about an attorney’s purported misconduct and believes the information he/she has is mere rumor, gossip, or innuendo, or is otherwise not sufficiently reliable or credible to warrant further consideration, the “substantial likelihood” prong is not met, and the judge is not ethically required to take any action at all, although he/she may do so in his/her sole discretion (see Opinion 15-138/15-144/15-166).
However, if an inquiring judge concludes the “substantial likelihood” prong is met, in our view, the overall conduct described seriously implicates the lawyer’s honesty, trustworthiness and fitness to be a lawyer and is thus “of a kind best sorted out by an independent agency with investigative capability” (Opinion 05-105/05-108/05-109). Therefore, if an inquiring judge believes the facts as presented to the Committee are true, that judge should report his/her own knowledge of the attorney’s conduct to the appropriate disciplinary committee for investigation, unless he/she is satisfied that this specific conduct has already been reported (see Opinions 14-162[A]; 09-49).
If any judge decides to make a report, that judge must disqualify him/herself in all matters where that attorney appears while the disciplinary matter is pending and for two years thereafter. During this period, remittal is not available unless the attorney waives confidentiality or the grievance committee issues a published opinion (see Opinion 17-56).
Of course, even if a judge concludes that he/she is not ethically required to report the attorney, he/she may nonetheless exercise his/her discretion to report the attorney, if he/she wishes to do so, even if this will result in disqualification of some or all judges in the specialized part.
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1 However, if the Commission issues “a formal written complaint against the judge based on a litigant’s, attorney’s or witness’s complaint, the judge must disqualify him/herself from matters involving that complainant” (Opinion 16-129).