Opinion 19-84

September 12, 2019

Digest:         Where a judge believes a recording, disclosed in an unsuccessful defense motion for a protective order in a now-completed criminal trial, reveals illegal conduct by a non-attorney/non-judge third party:

(1) the judge may, but need not, provide a copy to the prosecutor; and

(2) absent a law or ethics rule requiring defense counsel to produce the recording, the judge need not take any action concerning defense counsel’s failure to do so.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(D)(1)-(2); 100.3(E)(1)(d)(i); 100.3(E)(1)(e); Opinions 18-170; 17-90; 16-154; 16-25; 15-157; 14-86; 08-155; 07-144; 06-13; 03-110; 88-85/88-103.

Opinion:

         In a criminal case before the inquiring judge, the defendant sought a protective order to avoid disclosure of recorded conversations between the defendant’s relative and the complainant, if the defense called him/her to testify. In connection with the motion, the defendant “provided a copy of the recording to the Court, but not the People.”¹ The judge reviewed the recording and concluded the relative “had arguably committed” illegal witness tampering by “trying to convince the complainant not to cooperate with the prosecution.” Accordingly, the judge “issued a written decision denying the protective order based, in part, on the fact that the Court found such behavior unworthy of the Court’s protection.” Thereafter, the defendant “proceeded to trial, did not call [the relative] as a witness and therefore, was not required to and did not produce the recording to the People.” The defendant was acquitted. As the court clerk’s office “still has a copy of the recordings” submitted with the motion, the judge asks if he/she (1) may or must provide a copy to the prosecutor and/or (2) must take any disciplinary action concerning defense counsel’s failure to do so.

         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]). If a judge receives information indicating a “substantial likelihood” that a lawyer or another judge has committed a “substantial violation” of the applicable professional ethics rules, he/she must take “appropriate action” (22 NYCRR 100.3[D][1]-[2]). Each element of the analysis is ordinarily left to the judge’s discretion (see e.g. Opinion 18-170).

1. Disclosure to Prosecutors

         Regarding the defendant’s relative’s alleged crime, a judge’s disciplinary obligations relate solely to “a lawyer” or “another judge” (22 NYCRR 100.3[D][1]-[2]). Thus, we have said a judge need not report a non-judge/non-attorney’s apparent crimes to any authority, but may do so in his/her sole discretion (see e.g. Opinions 16-25 [police officer failed to comply with legal mandate]; 08-155 [litigant admitted violating probation and receiving disability benefits prohibited by federal statute]; 07-144 [judge’s acquaintance admitted embezzlement]; 06-13 [medical doctor litigant tested positive for illegal drugs]; 03-110 [evidence at trial revealed fraudulent vehicle registrations]; 88-85/88-103 [witnesses admitted failure to report taxable income and altering medical records]). In exercising that discretion, the judge may consider a variety of circumstances, including the likelihood of injury if the conduct is not reported (see e.g. Opinions 16-25; 08-155; 07-144, 03-110). In sum, “the Committee has never previously required a judge to report anyone to the District Attorney and declines to do so here” (Opinion 17-90).

         Further, just as we “are unaware of any authority requiring a judge to ‘remedy’ an alleged deficiency in the prosecutor’s disclosures concerning an expert witness by making those disclosures to defense counsel sua sponte” (Opinion 18-170), we are likewise unaware of any authority requiring a judge to “remedy” an alleged deficiency in defense counsel’s disclosures concerning a potential witness the defense ultimately declined to call.

         Accordingly, we conclude the judge may, but need not, provide a copy of the recording to the prosecutor.² Should the judge choose to do so, the judge may not preside over the resulting criminal case, if any (see 22 NYCRR 100.3[E][1][d][i]; 100.3[E][1][e]; Opinions 16-154; 14-86)

2. Disciplinary Obligations

         In Opinion 18-170, we considered a judge’s obligations with respect to a prosecutor’s alleged failures to make certain disclosures concerning the prosecution’s expert witness. We were unable to “determine if the two-prong test is satisfied, or (if so) what action will be appropriate.” We thus concluded “each determination must be left entirely to the judge’s discretion” (id.). There are surely fewer mandates for defense counsel to make disclosures to the prosecution concerning a potential defense witness who was never called. Indeed, this judge affirmatively states the defense “was not [legally] required to ... produce the recording to the People.”

          We conclude these facts do not necessarily constitute lawyer misconduct. Thus, absent an attorney ethics rule specifically requiring defense counsel to produce this recording to the prosecutor, the judge need not take any action concerning defense counsel’s failure to do so (see Opinion 15-157).

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¹ There is no indication the motion itself was made or decided ex parte, and thus we assume the prosecutors were at least aware of the recording’s existence.

² While we cannot address legal questions, we assume there is no legal obstacle to the proposed disclosure if, as the inquiry suggests, the recording is part of the court clerk’s official case file and is not under seal or subject to a protective order.