Opinion 22-49

March 10, 2022

Digest:         After a judge admonished an attorney on the record for an inappropriate attempt at humor referencing the client’s ethnicity or national origin, the judge has discretion to take further action, but is not required to do so.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(B)(5); 100.3(D)(2); Opinions 21-78; 20-213; 19-90; 18-58; 10-85.

Opinion:

         At a court appearance before the inquiring judge, one party and their Spanish-language interpreter failed to appear. That party’s attorney remarked that their client’s absence created a “Mexican standoff,” in what the judge describes as “a failed attempt at humor” that may have been inspired by the client’s ethnicity or national origin. In response, the judge “admonished the attorney on the record that such language was ‘not appropriate’” (cf. 22 NYCRR 100.3[B][5] [“A judge shall require lawyers in proceedings before the judge to refrain from manifesting, by words or conduct, bias or prejudice based upon ... race, creed, color, [or] national origin..., against parties, witnesses, counsel or others.”]). The judge now asks if they are ethically required to “take a further step, such as asking the attorney whether [the attorney] should consider withdrawing from the representation.”

         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 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]).

         The determination of whether there is a substantial likelihood that an attorney has committed a substantial violation of the Rules of Professional Conduct ordinarily rests within the discretion of the judge, who is “in the best position to evaluate and assess all relevant, known circumstances” (Opinion 18-58).

         If the judge concludes that this two-prong test is met, then the judge must take some action, but what action is “appropriate” under the circumstances is usually left to the discretion of the judge (see e.g. Opinions 21-78; 19-90; 10-85). Only in those few instances where a judge also concludes that the alleged misconduct is so egregious that it seriously calls into question the attorney’s honesty, trustworthiness or fitness to practice law is a judge required to report the attorney to the appropriate grievance committee (see e.g. Opinion 20-213). Otherwise, the judge has full discretion to determine what constitutes “appropriate action” upon the judge’s own evaluation of all relevant and known circumstances.

         The inquiring judge has already taken action in response to the misconduct, having admonished the attorney on the record that the remark was inappropriate. We conclude that the judge has full discretion to take, or not take, any further action (see e.g. Opinion 21-78).

         As the matter is left entirely to the judge’s discretion, we reach no conclusion as to the judge’s options, other than to articulate the general guidelines stated. That is, the judge has discretion to take further action, but is not required to do so.