Opinion 22-122
September 8, 2022
Digest: (1) Where a judge receives a letter from an assistant district attorney in which the attorney (a) admits secretly altering the supporting materials for a wiretap and ping order after the judge signed the order, (b) urges federal prosecutors not to use or rely on any evidence obtained from the order, and (c) urges federal prosecutors to share the letter with defendants and the court, the judge must report the attorney to the grievance committee.
(2) After reporting the assistant district attorney, the judge must disqualify in all cases involving that attorney both while the disciplinary matter is pending and for two years thereafter.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(D)(2); 100.3(E)(1); Opinions 22-64; 20-213; 17-90; 17-56; 13-77; 10-85; 09-142; 02-85.
Opinion:
The inquiring judge previously approved an application for a wiretap and ping order, after reviewing affidavits from a law enforcement officer and an assistant district attorney (ADA). The judge has now received a letter written by the ADA to federal prosecutors, revealing that the ADA made alterations to the supporting materials after the inquiring judge signed the wiretap and ping order, without the judge’s knowledge or approval. As described by the inquiring judge, the ADA’s letter “appears to state that the ADA made changes to either [the ADA’s own] affidavit or the affidavit of the law enforcement officer, or both, after [the judge] relied upon those documents in determining whether or not to sign the orders.” Moreover, on making those changes, the ADA apparently “replaced the original pages of those affidavits with the edited pages, discarded the original pages, and then forwarded the Order, with the amended affidavits that [the judge] never saw, to the” federal prosecutor. The judge notes that “the ADA kept the original signature pages of the affidavits and only replaced the edited pages.” The exact nature and extent of the changes is unclear. While the ADA identifies some potentially non-substantive changes (adding a file number and correcting misspellings), the ADA also recalls making other, unspecified changes in “a sentence in one or both of the affidavits.” Notwithstanding the ADA’s professed uncertainty about the seriousness of any substantive changes, however, the ADA expressly “caution[s]” the federal prosecutors against either “going forward with the wiretap and ping order evidence” or “making any arrests based on the wiretap and ping orders.” The ADA further “recommend[s] disclosure of this correspondence” to defendants and the court. On these facts, the judge asks if they are ethically required to report the ADA’s conduct to the attorney grievance committee, and whether the judge must disqualify in cases involving this ADA.
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 misconduct is so serious that it 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 satisfied here on the facts set forth in the inquiry. The “substantial likelihood” prong is met, as the ADA has admitted their own misconduct in a letter addressed to the federal prosecutors and has urged them to share the letter with defendants and the court (cf. Opinion 13-77 [attorney admitted misconduct in verified complaint]).
The “substantial violation” prong is also met where the letter suggests that the ADA deliberately sought to deceive the court and others by first obtaining a wiretap and ping order and then secretly altering the supporting materials afterward (cf. Opinions 09-142 [deliberate deception of the court is reportable misconduct]; 17-90 [alteration of order of protection must be reported, if judge concludes the law firm “deliberately sought to deceive the court, law enforcement, and the [protected] individual”]; 02-85 [alteration of a stipulation of settlement must be reported, if judge concludes the attorneys “engaged in a deliberate deception intended to perpetrate a fraud and deceive the parties and/or the court as to whether the additional language was now an order of the court”]). The ADA’s seeming effort to downplay the seriousness of the secret alterations is belied by their urging the federal prosecutors not to use or rely on any evidence obtained through the wiretap and ping orders, whether to make arrests or otherwise.
Accordingly, since the two-prong test is satisfied, 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 (see Opinion 20-213). In such instances, we have required reporting (id.). The ADA’s admitted misconduct here raises serious concerns about their honesty and trustworthiness, their sensitivity to the constitutional rights of the target(s) of the searches, and their respect for the role of the judiciary in reviewing and approving such applications. These concerns, in our view, clearly call into question the ADA’s fitness as an attorney and therefore, at the very least, warrant an investigation by the appropriate disciplinary authority. Accordingly, the judge must report the ADA to the attorney grievance committee.
We have further advised that, once a judge files a disciplinary complaint against an attorney, the judge must disqualify in all cases involving that attorney while the disciplinary matter is pending and for two years thereafter (see e.g. Opinions 22-64; 20-213; 17-56; 22 NYCRR 100.3[E][1] [judge is disqualified when “the judge’s impartiality might reasonably be questioned”]). As we explained in Opinion 22-64 (citations omitted):
To protect the [reported] attorney’s right to confidentiality, the judge may not reveal the reason for the disqualification except to the extent required by law, an issue on which we cannot comment. Finally, “[b]ecause 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, we continue to believe remittal is not appropriate until and unless the attorney waives confidentiality, or the grievance committee issues a public disciplinary decision.”