Opinion 21-171

December 2, 2021

Digest:         (1) The Committee does not answer hypothetical or speculative questions. (2) On the facts presented, it is within the inquiring judge’s sole discretion to determine if there is a substantial likelihood that a law firm’s actions constitute a substantial violation of the Rules of Professional Conduct and, if so, what action is appropriate.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(D)(2); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 19-63; 19-57; 17-140; 16-159; 16-85; 15-137; People v Moreno, 70 NY2d 403, 405 (1987).

Opinion:

         After the inquiring judge told their administrative or supervising judge (AJ/SJ) about a law firm’s attempted ex parte communication, the law firm started making complaints about the inquirer to the AJ/SJ. Although the inquiring judge states that some or all of the law firm’s claims are clearly contradicted by documentary evidence, the AJ/SJ has issued an administrative order assigning the law firm’s cases elsewhere and has declined the judge’s recent request to discontinue it. The judge now asks about potential disqualification and/or disciplinary obligations the judge may have with respect to the law firm.

         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 in any proceeding where their impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including where required by law or rule (see Judiciary Law § 14; 22 NYCRR 100.3[E][1][a]-[f]). However, where objective standards do not mandate disqualification, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403, 405 [1987]). In addition, a judge who receives information indicating a “substantial likelihood” a lawyer committed a “substantial violation” of the Rules of Professional Conduct must take “appropriate action” (22 NYCRR 100.3[D][2]).

1. Disqualification Question

         The judge first asks, “if the administrative order is lifted, should I consider recusing myself on all cases with this specific firm?”

         According to the inquiry, the AJ/SJ has issued an order assigning the law firm’s cases to other judges, and has thus far declined to discontinue it. Thus, at this time, the inquiring judge has no reasonably foreseeable occasion to consider whether they may preside in matters involving the law firm.

         We cannot answer questions that will be subject to multiple factual variations (see e.g. Opinions 16-85; 15-137). Here, the question is too hypothetical and speculative because neither we nor the inquiring judge can know what circumstances will exist if the administrative order is discontinued. We must therefore decline to respond (see Opinions 17-140; 19-63).

2. Disciplinary Question

         Finally, the judge asks if they must “report this attorney’s ongoing untrue complaints and ex parte discussions with another judge.”

         With respect to the alleged misconduct of the law firm or its attorney(s), on the facts presented, we believe it is entirely in the inquiring judge’s discretion to determine if the judge has information indicating a “substantial likelihood” a lawyer committed a “substantial violation” of the Rules of Professional Conduct (22 NYCRR 100.3[D][2]).¹ Unless the judge concludes both prongs are met, the judge need not take any action at all with respect to the alleged misconduct.

         Conversely, if the judge concludes both prongs are met, the judge must take “appropriate action” (id.). The question of what action, if any, is appropriate under the circumstances is likewise left to the sole discretion of the inquiring judge (see Opinions 19-57; 16-159).

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¹ Nothing in the inquiry suggests that the law firm or attorney has made materially false statements under oath. Nor does the inquiry identify any rule precluding an attorney or law firm from making complaints to an administrative judge (cf. https://www.nycourts.gov/ip/judicialconduct/index.shtml [“If you would like the Judicial Branch to look into other concerns about the conduct of a judge, you may contact the Administrative Judge for the court to which the judge is assigned.”]).