Opinion 21-78

April 29, 2021

Digest:       (1) Where an attorney persists in sending emails to the court and opposing counsel concerning a case, despite a court order disqualifying the attorney from the representation due to an ethical conflict under the Rules of Professional Conduct, the judge must take appropriate action. (2)(a) If, on considering all relevant circumstances, the judge determines that the misconduct seriously calls into question the attorney’s honesty, trustworthiness, or fitness as a lawyer, the appropriate action is to report the attorney to the disciplinary committee. (b) Conversely, if the judge determines the misconduct does not reach that level of egregiousness, the judge has discretion to take less severe appropriate measures which may include, but are not limited to, counseling or warning the lawyer, reporting the lawyer to their employer, or sanctioning the lawyer.

Rules:        22 NYCRR 100.2; 100.2(A); 100.3(D)(2); 22 NYCRR part 1200, Rules 3.4(a)(6), 3.4(c), 8.4(a); Opinions 16-46; 10-122; 10-85.

Opinion:

       The inquiring judge is presiding over a case in which one party was initially represented by an attorney who is also a close relative of that party. On motion by the other party, the court disqualified the attorney for an ethical conflict under the Rules of Professional Conduct. Notwithstanding the disqualified attorney’s personal knowledge of this court order, the attorney emailed the court and opposing counsel twice concerning their ex-client’s case. The first email referenced the ex-client’s plan to pursue an appeal and seek a stay in the matter. The second email advised that the ex-client was no longer pursuing the requested relief. The judge asks if reporting is mandatory on these facts.

       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]).

       We note, initially, that the “substantial likelihood” prong is satisfied by the attorney’s emails to the court.¹ The “substantial violation” prong is also met where, as here, an attorney who was disqualified from a client representation by court order due to an ethical conflict nevertheless sent emails to the court and opposing counsel concerning the case, at least one of which took an affirmative position on behalf of the ex-client (see e.g. 22 NYCRR 1200, Rule 3.4[c] [lawyer shall not “disregard ... a ruling of a tribunal made in the course of a proceeding, but the lawyer may take appropriate steps in good faith to test the validity of such rule or ruling”]; Rule 3.4[a][6] [lawyer shall not “knowingly engage in ... conduct contrary to these Rules”]; Rule 8.4[a] [lawyer shall not “violate or attempt to violate the Rules of Professional Conduct”]).

       Accordingly, since the two-prong test is met, the sole issue for our consideration is what constitutes “appropriate action” under the circumstances (see Opinion 16-46; 22 NYCRR 100.3[D][2]). In most instances, even after the judge finds it necessary to take “appropriate action,” the issue of what action is “appropriate” under the circumstances remains within the judge’s discretion (see e.g. Opinions 10-122 [“What constitutes appropriate action necessarily depends on the context and nature of the substantial violation”]; 10-85).

       However, if the judge determines that the misconduct is so egregious that it seriously calls into question the attorney’s honesty, trustworthiness or fitness as a lawyer, the only appropriate action is to report the conduct to the appropriate disciplinary authority (see Opinions 16-46; 10-85). Conversely, if the judge concludes that the conduct does not rise to such an egregious level, the judge has the discretion to take less severe appropriate measures (see Opinion 10-85). Such measures may include, but are not limited to, counseling or warning the lawyer, reporting the lawyer to their employer, or sanctioning the lawyer (see id.).

       What constitutes “appropriate action” depends upon all the surrounding circumstances known to the judge, including an assessment of whether the lawyer, if confronted by the judge, shows genuine remorse, contrition, or ignorance of a rule; whether the lawyer has any history of unprofessional or other conduct in violation of the Rules of Professional Conduct; or any other relevant conduct or factor known to the judge (see id.).

       Accordingly, based upon all the surrounding circumstances, the judge must determine whether or not the attorney’s conduct seriously calls into question the attorney’s honesty, trustworthiness, or fitness as a lawyer and thereafter exercise their discretion to determine the appropriate action to take.

_____________________________

¹ We note the attorney’s words are memorialized in writing, thus removing any uncertainty about what was said.