Opinion 22-32
March 10, 2022
Digest: Where the inquiring judge is not certain that the alleged conduct of an attorney violates the Rules of Professional Conduct or concludes that the alleged misconduct is not substantial, the judge need not take further action, although the judge may do so, in the judge’s sole discretion.
Rules: 22 NYCRR 100.2(A); 100.3(D)(2); Opinions 18-176/18-176(A)/18-177; 17-07; 15-189; 15-183; 15-138/15-144/15-166; 10-86.
Opinion:
The inquiring judge is presiding in a case where the defendant has raised questions about opposing counsel’s fitness to practice law. As relevant here, the defendant seeks to disqualify plaintiff’s counsel and impose sanctions, based on allegedly improper conduct by plaintiff’s counsel and its former associate. The defendant’s allegations are based partly on defense counsel’s own observations and conversations with plaintiff’s counsel, and partly on allegations made by plaintiff’s counsel’s former associate in a now-sealed litigation between them. The inquiring judge denied defendant’s motion “primarily due to the client [i.e. plaintiff] submitting an affidavit in opposition,” but believes the allegations raised by defendant’s counsel and the former associate of plaintiff’s counsel may warrant further investigation. On these facts, the judge asks if it is mandatory to report plaintiff’s counsel and its former associate to the grievance committee.
A judge must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, if a judge receives information indicating a “substantial likelihood” that an attorney has committed a “substantial violation” of the applicable rules of professional ethics, the judge must take “appropriate action” (22 NYCRR 100.3[D][2]).
Opinion 18-176/18-176(A)/18-177 (citations and indentation omitted) summarizes the general principles and analysis as follows:
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.
Of particular note, judges need not take any action in response to allegations of attorney misconduct when one or both of the substantiality tests have not been met. For example, 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. Likewise, a judge need not take action merely because he/she knows that an attorney was charged with grand larceny or is under indictment. A similar result applied when an attorney serving as a court interpreter allegedly gave legal advice to a witness who was not his/her client, but the judge has no direct knowledge of the incident.
Moreover, a judge’s discretion to evaluate and assess all relevant, known circumstances, including the information’s reliability, is particularly important where the information is based solely on hearsay or other second-hand information (see e.g. Opinions 17-07; 15-189; 15-183).
We previously considered an inquiry from a judge who, in the course of their judicial duties, reviewed criminal charges against a lawyer that would, if proved, constitute a substantial violation of the Rules of Professional Conduct (see Opinion 10-86). The judge had no personal knowledge of any wrongdoing, however, and was not required to undertake any investigation to determine if the allegations had merit (see id.). We thus advised that the judge “is not required to take any action unless he/she concludes there is a substantial likelihood that the charges are true” (id.).
Here, too, the inquiring judge has no direct knowledge of the alleged facts which may prove unethical and improper conduct by plaintiff’s counsel and its former associate. Accordingly, if the judge is not certain that the “substantial likelihood” prong is met or that the alleged conduct violates the Rules of Professional Conduct, the judge need not take further action, although the judge may do so, in the judge’s sole discretion (see e.g. Opinions 17-07; 15-138/15-144/15-166; 10-86).
Conversely, if the judge concludes, in their sole discretion, that the “substantial likelihood” prong is met, the judge must then consider whether the “substantial violation” prong is also met. If so, the judge must then also decide what action is appropriate under the known circumstances (see e.g. Opinion 15-183).