Opinion 23-113
September 7, 2023
Digest: Where a judge concludes that there is a substantial likelihood that an attorney made biased and harassing comments to court personnel and opposing counsel during a court appearance but outside the judge’s presence, the judge must report this conduct to the appropriate attorney grievance committee.
Rules: Judiciary Law § 90; 22 NYCRR 100.2; 100.2(A); 100.3(B)(4)-(5); 100.3(C)(2); 100.3(D)(2); 22 NYCRR part 1240; Opinions 22-122; 22-49; 21-78; Kuehnel v State Comm’n on Jud. Conduct, 49 NY2d 465 (1980).
Opinion:
The inquiring judge has become aware of multiple offensive remarks made by an attorney to nonjudicial court personnel and opposing counsel in the course of a proceeding. On review of the specific remarks, we conclude that some appear to qualify as sexual harassment as defined in the Unified Court System’s Sexual Harassment Policy and Procedures,[1] while others appear to reflect ethnic and/or religious bias. Although the remarks were made outside the judge’s presence, the judge is satisfied that the attorney in fact made those extended remarks, “as though he was an offensive comedian in a comedy club,” causing the other participants to feel discomfort. The inquiring judge has already counseled the attorney that these remarks were completely inappropriate in a court proceeding. The judge asks if it is also necessary to report the attorney to the grievance committee.
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]). A judge must discharge their judicial duties without bias or prejudice against or in favor of any person and “shall require” similar conduct of “staff, court officials and others subject to the judge’s direction and control” (22 NYCRR 100.3[B][4]; 100.3[C][2]). Furthermore, a judge in discharging their adjudicative duties also must “require lawyers in proceedings before the judge to refrain from manifesting, by words or conduct, bias or prejudice based upon” factors such as “sex, sexual orientation, gender identity, gender expression, religion, [or] national origin” (22 NYCRR 100.3[B][5]). Relatedly, a judge who receives information indicating a “substantial likelihood” that an attorney committed a “substantial violation” of the Rules of Professional Conduct must take “appropriate action” (22 NYCRR 100.3[D][2]).
It appears that the inquiring judge has concluded that the two-prong test is met and that it was necessary to take “appropriate action.” Since the inquiring judge has already taken some steps, the sole question for our consideration is whether the conduct must also be reported. The standard for mandatory reporting is easily stated: When “the misconduct is so egregious that it seriously calls into question the attorney’s honesty, trustworthiness or fitness as a lawyer,” we have said “the only appropriate action is to report the conduct to the appropriate disciplinary authority” (Opinion 21-78 [emphasis added]).
While this determination is usually left to the judge’s discretion, we note that the failed attempt at humor here went far beyond a single misstep which was immediately curbed (cf. Opinion 22-49). Rather, this attorney allegedly engaged in an extended and offensive “comedy” routine which, if it occurred as described, appears to constitute sexual harassment under the Unified Court System’s official guidelines. In this context, we also note that the attorney decided to put on this courthouse performance outside the presence of the inquiring judge, who would have had both the authority and the responsibility to “require” the attorney to desist (22 NYCRR 100.3[B][5]). Indeed, the attorney’s chosen audience included student interns and opposing counsel, who were by no means “cloaked figuratively” with a judge’s “black robe of office” (cf. Kuehnel v State Comm’n on Jud. Conduct, 49 NY2d 465, 469 [approvingly quoting the referee]).
We conclude the conduct set forth in the inquiry, if true, is so egregious that it seriously calls into question the attorney’s fitness as a lawyer. At the very least, it warrants a thorough disciplinary investigation by a body designated by the legislature for that purpose.[2] Accordingly, the judge must report the attorney’s conduct to the appropriate attorney grievance committee.
After reporting the attorney, the judge must disqualify in all cases involving that attorney both while the disciplinary matter is pending and for two years thereafter (see e.g. Opinion 22-122). Disqualification on this basis is not subject to remittal (see id.).
[1] Among other things, the Policy prohibits sexual harassment by attorneys against court employees (see Policy at 1). Prohibited conduct “includes unwelcome conduct of a sexual nature or conduct directed at an individual or group of people on the basis of their sex, actual or perceived sexual orientation, gender identity or gender expression when … the conduct has the purpose or effect of interfering with work performance, or creating an intimidating, hostile or offensive work environment” (id.). It may take the form of “unwanted verbal … advances” or “sexually discriminatory remarks which are offensive or objectionable to the recipient and cause the recipient to feel discomfort, humiliation or intimidation” (id. at 2).
[2] We note that the grievance committees operate within statutory parameters that necessarily reflect significant policy choices concerning the rights of the accused attorney and the interest of the public (see Judiciary Law § 90; 22 NYCRR part 1240). Accordingly, a judge should not undertake to conduct their own ad hoc “disciplinary proceeding” of an attorney absent clear legal or administrative authority to do so.