Opinion 20-213

January 28, 2021

Digest:         A judge with personal knowledge that an attorney knowingly assisted a client in effectuating a transfer of disputed real estate under false pretenses must report the misconduct to the appropriate grievance committee. Reporting may await the conclusion of proceedings. After making the report, the judge is disqualified in all matters involving the attorney, both while the disciplinary matter is pending and for two years thereafter.

Rules:        Judiciary Law § 487; 22 NYCRR 100.2; 100.2(A); 100.3(D)(2); 130-1; 1200, Rules 3.3, 8.4; Opinions 20-22; 19-107; 18-29; 15-231; 14-88; 13-77; 10-85; 09-142; 07-129; 02-85; Matter of Rudgayzer, 80 AD3d 151 (1st Dept 2010); Matter of Glavin, 153 AD2d 982 (3d Dept 1989).

Opinion:

         The inquiring judge is presiding over a contested estate proceeding in which the parties dispute, among other things, ownership of certain real property. The judge removed the original named executor in open court, in the presence of the former executor’s attorney. Thereafter, the attorney prepared a deed transferring the contested real property to their client and the client’s spouse and caused it to be filed and recorded in the County Clerk’s office. The deed falsely identifies the client as the executor and relies on this status in purporting to authorize the transfer. The judge asks if this conduct must be reported, and if so, whether it can “await the final conclusion of the estate.”

         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]). Therefore, a judge who has information indicating a “substantial likelihood” that a lawyer has committed a “substantial violation” of the Rules of Professional Conduct must take “appropriate action” (22 NYCRR 100.3[D][2]). If the two-prong test is met and the misconduct is so egregious that it seriously 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 10-85).

         We note, initially, that the two-prong test is clearly met here on the facts set forth in the inquiry. The “substantial likelihood” prong is satisfied because the judge gained personal knowledge of all relevant elements of the alleged misconduct in the course of presiding over an estate proceeding. The “substantial violation” prong is also met where, as here, an attorney allegedly prepared, acknowledged and caused to be recorded in the County Clerk’s office, a document containing materially false information relevant to a disputed issue in the litigation. Indeed, if the events set forth in the inquiry occurred as described, they seem on their face to rule out any possibility of an innocent mistake by the attorney.¹

         Accordingly, since the two-prong test is met, the sole issue for our consideration is what constitutes “appropriate action” under the circumstances (22 NYCRR 100.3[D][2]). While a judge ordinarily has discretion to make this determination, sometimes an inquiry describes alleged misconduct that, if true, seriously calls into question the attorney’s honesty, trustworthiness, or fitness as a lawyer. In such instances, we have required reporting. Thus, reporting is mandatory when a judge concludes that an attorney “engaged in a deliberate deception, intended to perpetrate a fraud and deceive the parties and/or the court” (Opinion 02-85) or “admitted under oath that he/she committed perjury” (Opinion 07-129). In general, when a judge has substantial knowledge that an attorney has deliberately engaged in material fraud or deception, such conduct must be reported (see e.g. Opinions 13-77 [attorney admitted in a sworn complaint that they advised a client that the client’s lawsuit was settled when, in fact, the attorney had discontinued the suit and paid the client the purported settlement amount from the attorney’s own personal funds; judge must report]; 09-142 [if judge believes that attorney “deliberately sought to deceive the court and his/her own client,” judge must report]; 14-88 [attorney testified under oath that they used a fictitious bank account to shield their law firm income from court-ordered child support payments; judge must report]).

         Here, according to the inquiry, while the judge was presiding over estate litigation involving disputed issues of ownership of certain real property, an attorney, with knowledge of the falsity, prepared a deed containing materially false information concerning that property. The attorney then caused the deed to be filed and recorded in the County Clerk’s office. The alleged misconduct clearly implicates the attorney’s trustworthiness and fitness as a lawyer, and therefore must be reported to the appropriate grievance committee (see also e.g. 22 NYCRR 1200, Rules 3.3 [Candor Before a Tribunal]; 8.4 [Misconduct]; Matter of Rudgayzer, 80 AD3d 151 [1st Dept 2010] [attorney misconduct involving filing false instruments has resulted in sanctions ranging from a short suspension to disbarment depending on the repetitiveness of the misconduct and the desire for personal profit]; Matter of Glavin, 153 AD2d 982 [3d Dept 1989] [falsely affixing and notarizing signature warranted imposition of discipline despite absence of venal motive]).² However, the judge may wait until conclusion of the matter before reporting the attorney (see Opinions 19-107; 18-29; 15-231).

         After making the disciplinary referral, the judge is disqualified from presiding in matters involving the attorney during the pendency of the disciplinary matter and for two years thereafter (see Opinions 19-107; 18-29).³

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¹ For example, the judge knows that the attorney had personal knowledge of the bench order removing the client as executor, because the attorney was present and participated in the proceeding.

² Referring the attorney for possible discipline is, of course, without prejudice to other steps that could potentially be taken by the judge or others. Attorneys who commit serious misconduct in the course of litigation may be sued for malpractice or breach of fiduciary duty, subjected to punishment and damages under Judiciary Law § 487, sanctioned by the court (see 22 NYCRR 130-1), or other measures as permitted by law.

³ Because remittal requires full disclosure of the basis for disqualification, sufficient for the parties and their counsel to “freely and affirmatively consent to waive the conflict” (Opinion 20-22), we continue to believe remittal is not appropriate until and unless “the attorney waives confidentiality, or the grievance committee issues a public disciplinary decision” (Opinion 19-107 [citation omitted]).