Opinion 22-123

September 8, 2022

Digest:         A judge with personal knowledge of an attorney’s apparently deliberate misrepresentations to their client about having secured an adjournment, resulting in a default and inquest, and the attorney’s subsequent failure to appear when the matter was returned to the calendar, mandate reporting the attorney to the appropriate grievance committee. Reporting may await the conclusion of the 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 §§ 9; 90(10); 22 NYCRR 100.2; 100.2(A); 100.3(D)(2); 100.3(E)(1); Opinions 22-64; 21-78; 21-45; 20-213; 19-107; 13-77; 10-85; 09-142; 07-129; 02-85.

Opinion:

         The inquiring judge is presiding in a civil proceeding. On the morning of a scheduled hearing, the attorney for one party called nonjudicial court staff to ask about the status of the hearing. The staff member advised that the hearing was going forward and that there would be no adjournments. When that attorney and their client failed to appear, the judge held a default inquest on the record and rendered a decision. Later that day, the defaulting party contacted the court clerk and explained that their counsel had advised them that the case had been adjourned and that the party “did not have to appear.” In corroboration, the defaulting party provided text messages in which the attorney claimed to have “appeared in Court and got an adjournment.” The clerk’s office told the defaulting party to contact their attorney and make a motion to vacate the default. When no further papers were received, the judge sua sponte put the matter back on the calendar and notified both attorneys to appear with their clients. At this second court date, the prevailing party and their attorney appeared, along with the defaulting party; but the defaulting party’s attorney did not appear. Testimony was taken as to what had occurred, and the defaulting party provided the corroborating text messages. The judge inquires whether they must take disciplinary action against the attorney under 22 NYCRR 100.3(D)(2).

         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 e.g. Opinions 21-78; 10-85).

         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 the matrimonial action. Specifically, the judge is personally aware that the attorney twice failed to appear and has reviewed the text messages sent by the attorney to the client. The “substantial violation” prong is also met where, as here, an attorney allegedly texted to the client materially false information, i.e. that they appeared in court and were granted an adjournment, when instead the matter proceeded to an inquest based upon the client’s default. It also seems, from the attorney’s contacting the court prior to the first court date and also failing to appear at the subsequent conference, that there was no possibility of an innocent mistake.

         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 (see Opinion 20-213). In such instances, we have required reporting (id.). We have said 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), “admitted under oath that he/she committed perjury” (Opinion 07-129), or falsely advised a client a lawsuit had been settled when, in fact, the attorney discontinued the suit and paid the settlement out of their own funds (see Opinion 13-77). Moreover, where a judge “concludes that an attorney deliberately sought to deceive the court and acted extremely unprofessionally in defiance of court directives” concerning the attorney’s numerous failures to appear, we said the judge must report the attorney (Opinion 09-142).

         Here, the judge indicates that, after the attorney confirmed with court staff that a hearing was going to proceed as scheduled and would not be adjourned, the attorney falsely advised the client that an adjournment had been granted and that they need not appear. As a result of this non-appearance, a default was taken and an inquest was conducted. Moreover, when the judge placed the matter back on the calendar, the attorney again failed to appear. Such conduct, if it occurred as described, implicates the attorney’s honesty, trustworthiness and fitness as a lawyer, warranting mandatory reporting to the appropriate grievance committee. Accordingly, the judge must report the alleged misconduct.

         The judge may, however, wait until the conclusion of the proceeding before reporting the attorney (see Opinions 20-213; 19-107).

         After reporting the attorney, the judge is disqualified from presiding over matters involving the attorney during the pendency of the disciplinary matter and for two years thereafter (see 22 NYCRR 100.3[E][1]; Opinions 20-213; 19-107). While we previously advised that a judge must not reveal this specific basis for disqualification (see Judiciary Law § 90[10]), recent changes to the law now mandate disclosure in many circumstances (see Judiciary Law § 9). Resolving the apparent dissonance between these two provisions involves a legal question which we must decline to answer (see Opinion 21-45). 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.”