Opinion 19-44

June 17, 2019

Please Note: As of the Committee’s April 29, 2021 meeting:

(1) The Committee has not overruled its prior opinions prohibiting remittal of disqualification in matters where a judge previously reported an attorney to the grievance committee. 

(2) With respect to whether a judge may publicly disclose the reason for recusal here, in light of the apparent dissonance between Judiciary Law § 9 (eff. December 2020) and Judiciary Law § 90(10), we have advised: “Whether a judge who has reported an attorney to an attorney grievance committee may publicly disclose the reason for recusal, when confidentiality has not been waived, is a legal question we cannot resolve.”  See Opinion 21-45 (but noting that private disclosure to the reported attorney is ethically permissible).

Dear :

         This responds to your inquiry (19-44) asking if you are obliged to report an attorney, appearing pro se before you in one case, who makes false claims about you in affidavits and in other unrelated proceedings he/she has brought against you.¹ You also must recuse from presiding in the matter if you report this attorney.

         A judge, who has information indicating a “substantial likelihood” that a lawyer 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 18-29).

         We previously advised that a judge with personal knowledge an attorney made perjurious statements in an affirmation must report it to the appropriate attorney disciplinary committee (see Opinions 18-29; 13-77; and 09-142). After so 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 200.3[E][1]; Opinions 18-29; and 15-231). To protect the attorney’s right to confidentiality, the judge may not reveal the reasons for the disqualification (see Opinion 08-183/08-202/09-112). Thus, remittal of disqualification is unavailable unless the lawyer 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 previously advised a judge may, in his/her discretion, wait until the proceeding ends to report the attorney (see Opinion 15-231).

         For your convenience, enclosed Opinions 18-29; 15-231;13-77; 09-142; and 08-183/08-202/09-112 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.

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¹ The Committee cannot comment on whether the non-attorney diversion program coordinator was engaged in the unauthorized practice of law.