Opinion 22-143

October 27, 2022

Digest:         A judge may take appropriate action to address disruptions of the court’s docket by an attorney who, when regularly appearing of counsel to multiple law firms, engages in disrespectful conduct toward the court and staff, is uncooperative, refuses to discuss settlement of cases and is often unprepared.

Rules:          Judiciary Law § 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.3; 100.3(B)(2)-(3); 100.3(D)(2); 101.1; 22 NYCRR 1200, Rule 1.1(a); Opinions 19-35; 09-188.

Opinion:

         A judge of a specialized court seeks guidance concerning an attorney who regularly appears “of counsel” to multiple law firms. The attorney is disruptive in court by being discourteous, disrespectful, unprepared to discuss the case and unwilling to attempt to settle the matter. The inquiring judge asks whether it is ethically permissible to (1) prohibit the attorney from making appearances in the court; or (2) contact the firms that the attorney appears for and (a) advise them that they must send someone else to appear, (b) ask them to only send attorneys who are prepared to actively engage in cases, and/or (c) advise them that if they do not send someone willing to negotiate, such failure will constitute a default in the matter.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must perform the duties of judicial office impartially and diligently” (22 NYCRR 100.3) and must “require order and decorum” in court proceedings (22 NYCRR 100.3[B][2]). Moreover, a judge “shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, and of staff, court officials and others subject to the judge’s direction and control” (22 NYCRR 100.3[B][3]).

         We note that New York’s Rules of Professional Conduct specifically require a lawyer to “provide competent representation to a client,” which is defined as “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation" (22 NYCRR 1200, Rule 1.1[a]). Accordingly, in compliance with the rules governing judicial and attorney conduct, a judge should expect and may require that an attorney be prepared to address the substantive and procedural issues in the matter in which the attorney appears before the court. If the judge determines that there is a “substantial likelihood” that the attorney “has committed a substantial violation” of the Rules of Professional Conduct, the judge must take “appropriate action” (22 NYCRR 100.3[D][2]), which may include reporting the attorney to the appropriate disciplinary committee of the Appellate Division (see Opinion 19-35).¹

         Thus, the judge may communicate in writing with the law firms for which the attorney appears of counsel and require that such attorney, or any other attorney appearing in the matter, comply with applicable rules. Notably, while the judge may require that an attorney who appears on a matter be prepared, such judge may not simply bar the attorney from the court (see Opinion 09-188 [advising that a judge who cannot be impartial when a certain attorney appears in the judge’s court due to the attorney’s past conduct must disqualify him/herself from the attorney’s cases]).

         The question as to whether the judge may consider failure to comply with relevant rules to constitute a default is primarily legal in nature. Because we are authorized to answer only questions concerning judicial ethics (see 22 NYCRR 101.1), such legal and administrative questions are outside our jurisdiction and therefore we cannot respond (see Judiciary Law § 212[2][l]; Opinion 19-35).

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¹ On the facts presented here, the judge has full discretion to determine whether the two prongs are met and, if so, what action is appropriate.