Opinion 22-164
December 15, 2022
Please Note: This opinion uses the term "attorney subpoena" to mean one issued by an attorney of record for a party to an action without court order and the term "judicial subpoena" to mean one issued or so-ordered by a judge. This usage follows the inquirer's lead, rather than the strict language of the CPLR.
Digest: (1) A judge must report an attorney who, on learning that a non-party would only honor a judicial subpoena, personally signed a subpoena above the judge’s name and served it on the non-party. However, reporting may wait until the conclusion of the case.
(2) A judge has no disciplinary obligation with respect to an attorney for a non-party who honored the purported judicial subpoena.
(3) With respect to an allegation that an attorney provided a photograph of their client’s party adversary acting unprofessionally to that party’s employer, the judge has full discretion to determine whether the judge has received information indicating a substantial likelihood that the attorney committed a substantial violation of the attorney ethics rules. If the judge concludes this standard is not met, the judge need not take any action. If the judge concludes this standard is met, the judge must take appropriate action, but has full discretion to determine what action is appropriate under the circumstances.
Rules: 22 NYCRR 100.2; NYCRR 100.2(A); 100.3(D)(2); 22 NYCRR 1200, Rule 1.1(a)-(b); Opinions 22-123; 18-170; 15-157; 15-69; 14-88; 07-129; 05-105/05-108/05-109; 02-85.
Opinion:
In the course of presiding in a case, the inquiring judge has become aware of potential misconduct by three attorneys. For purposes of discussion, the lawsuit is between Party A and Party B, while Non-Party C is the employer of Party B.
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]). Thus, a judge who receives information indicating a “substantial likelihood” an attorney committed a “substantial violation” of the Rules of Professional Conduct must take “appropriate action” (22 NYCRR 100.3[D][2]). As described in Opinion 14-88 (citations omitted):
In general, the Committee has advised that a judge must determine whether in a particular case there is a “substantial likelihood” an attorney has committed a “substantial violation” of the Rules of Professional Conduct based on all the facts and circumstances known to the judge. A judge need not undertake any investigation of an attorney’s alleged misconduct. If a judge concludes there is a substantial likelihood that an attorney has committed a substantial violation of the Rules of Professional Conduct, the judge “must take appropriate action.” Because “appropriate action” depends on the circumstances of each case, it is ordinarily left to the judge’s discretion to determine the appropriate action. However, if the judge concludes the misconduct seriously calls into question the attorney’s honesty, trustworthiness or fitness as a lawyer, then the only appropriate action is to report the attorney to the appropriate disciplinary authority.
1. Signing a “Judicial Subpoena”
Attorney A, on behalf of Party A, initially sought to obtain business records from Non-Party C via an attorney subpoena. On being advised by Attorney C that Non-Party C required a judicial subpoena, Attorney A submitted “the same subpoena with the (new) caption Judicial Subpoena Duces Tecum” and signed Attorney A’s own name above the judge’s printed name. The judge believes Attorney A’s conduct was “sloppy” at best, and potentially “deceptive” at worst. The judge declined to admit the records into evidence due to Attorney A’s misconduct in obtaining them.
As it appears from the inquiry that the judge has already determined that both the “substantial likelihood” and “substantial violation” prongs are met, we turn to the question of “appropriate action.” This decision is ordinarily within the judge’s sole discretion. Sometimes, however, a described ethics violation is “so clearly serious or egregious that the Committee has said a judge should report it to a disciplinary authority” (Opinion 07-129). In Opinion 02-85, for example, where attorneys altered a signed stipulation by adding language that had been specifically rejected by the court, we advised that:
If…the judge concludes that, the attorneys involved 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 appropriate action is clear: the matter should be reported to the attorney disciplinary committee.
Here, too, the conduct as described is also clearly serious and egregious because it implicates the lawyer’s honesty, trustworthiness and fitness to be a lawyer. Significantly, even though Attorney A signed their own name, they did so above the judge’s printed name on a subpoena which was prominently captioned “Judicial Subpoena Duces Tecum.” In our view, these circumstances strongly suggest that Attorney A deliberately sought to deceive Attorney C into thinking that the previously-rejected attorney subpoena had now been signed by the judge. Even if Attorney A’s deception was due to mere “sloppy” ignorance of how a judicial subpoena differs from an attorney subpoena, this extraordinary level of ignorance raises serious questions about Attorney A’s competence.1 On these facts, we conclude the seriousness of the conduct is “of a kind best sorted out by an independent agency with investigative capability” (Opinion 05-105/05-108/05-109). Therefore, the judge must report the conduct to the appropriate grievance committee for investigation.
After reporting Attorney A, the judge must disqualify in all matters where Attorney A appears, both while the disciplinary matter is pending and for two years thereafter, and remittal is not available (see Opinion 22-123).
To avoid unwarranted disruption, however, the judge may wait until the conclusion of the current proceeding before reporting Attorney A (see id.).
We note that the judge may not circumvent these obligations by suggesting that Attorney A self-report (cf. Opinion 15-69 [where court attorney referee advised and spoke with the referring judge about attorney misconduct that was revealed during proceedings before the referee, resulting in a lawyer disciplinary complaint, referee must be held to the same standard as if the referee had personally filed the complaint]).
2. Honoring an Apparently Valid Judicial Subpoena
Attorney C, on behalf of Non-Party C, initially received Attorney A’s attorney subpoena and advised Attorney A that a judicial subpoena was required. On receiving the purported judicial subpoena, Attorney C “thought it was odd that [Attorney A] obtained a judge’s signature at 7:40 am” but still “released the records directly to” Attorney A without further inquiry.2 As noted above, the document was captioned “Judicial Subpoena Duces Tecum” and bore a signature above the judge’s printed name. The judge suggests Attorney C “should have called my chambers” on becoming suspicious.
On occasion, we have concluded that the facts presented in an inquiry “do not necessarily constitute attorney misconduct” (Opinion 15-157 [“Absent a court directive or ethics rule requiring the attorneys to refrain from speaking to a non-party witness during a recess in the midst of a hearing, a court attorney referee need not take any action on learning that an attorney briefly spoke to the witness about subpoenaed materials during the recess.”]).
Here, as described in the inquiry, it seems that Attorney C received and honored an apparently valid judicial subpoena after having requested one. We note that the inquiring judge does not identify any authority that would affirmatively require an attorney to investigate the validity of a judicial subpoena, solely because the subpoena was signed outside of regular business hours. Accordingly, we can see no basis for the inquiring judge to take any disciplinary action against Attorney C.
3. Photograph of Unprofessional Conduct
Attorney B, on behalf of Party B, alerted Party A’s employer about a photograph of Party A engaging in unprofessional conduct with the employer’s logo in the background. This resulted in a disciplinary warning to Party A.3
On the facts presented, we conclude the inquiring judge is in the best position to assess if there is a “substantial likelihood” that Attorney B has committed a “substantial violation” of the Rules of Professional Conduct (see e.g. Opinion 18-170). If either prong fails, the judge need not take any action. If the judge concludes that both prongs are satisfied, then the judge must act – but it is entirely within the judge’s discretion to determine what action is “appropriate” under all the circumstances known to the judge (see id.).
Again, even if the judge decides to report Attorney B to the grievance committee, the judge “may wait until the case is over before making the report, in order to avoid the need for immediate disqualification in all matters involving the attorney” (id.).
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1 Competent representation “requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation” (22 NYCRR pt 1200, Rule 1.1[a]). If an attorney “knows or should know” they lack the requisite level of competence, they “shall not” handle the matter unless they “associat[e] with a lawyer who is competent to handle it” (22 NYCRR pt 1200, Rule 1.1[b]).
2 Attorney C has provided a detailed affirmation to the court.
3 The conduct depicted was apparently juvenile and discourteous. There is nothing in the inquiry to suggest that Attorney B obtained the photograph through improper means.