Opinion 20-127 

                                                 October 9, 2020

Dear :

         This responds to your inquiry (20-127) asking about your ethical obligations on learning, from the attorneys’ own submissions in a case, that their clients failed to file tax returns for multiple years. You also ask what obligations the attorneys may have had to their respective clients before making these admissions.

         We decline to comment on what the attorneys should or should not have done, as that involves assessing the past conduct of third parties under the Rules of Professional Conduct.

         Turning to your own obligations, we first note you are not ethically required to take disciplinary action with respect to litigants’ alleged criminal behavior unless those litigants are themselves attorneys or judges (cf. 22 NYCRR 100.3[D]).

         With respect to the attorneys, we conclude it is entirely within your discretion to determine whether the dual pronged requirements of 22 NYCRR 100.3(D)(2) have been met, i.e. whether you have received information indicating a “substantial likelihood” that a lawyer has committed a “substantial violation” of the Rules of Professional Conduct (22 NYCRR 100.3[D][2]).

         If you conclude either prong is not met, you need not take any action (but may do so in your discretion).

         If you conclude both prongs are met, you must take “appropriate action,” but what action is appropriate under the circumstances is likewise entirely within your discretion. While reporting to a disciplinary body is an option, it is not mandatory unless you conclude the conduct at issue seriously calls into question a lawyer’s honesty, trustworthiness or professional fitness. Conversely, if you conclude that the conduct does not rise to that level of egregiousness, you may consider other appropriate action such as counseling and/or warning the lawyer, reporting the lawyer to his/her employer, or sanctioning the lawyer.

         Finally, if you ultimately refer a complaint against either or both attorneys, you are disqualified in all cases involving the reported attorney(s) while the disciplinary matter is pending and for two years thereafter. The disqualification may not be remitted, unless the reported attorney waives confidentiality, or the grievance committee issues a published opinion. Therefore, even if you conclude that reporting is mandatory, you may decide to wait until this particular case is over to avoid the need for immediate disqualification in all matters involving the reported attorney(s).

         Enclosed, for your convenience, are Opinions 18-170; 18-58; 16-159; 15-153 which address these issues.

                                       Very truly yours,

                                       George D. Marlow, Assoc. Justice (Ret.)

                                       Appellate Div. First Dep’t

                                       Committee Co-Chair

                                       Margaret T. Walsh                                                                                           Supreme Court Justice

                                       Committee Co-Chair

Encls.