Opinion 23-20

February 2, 2023

Digest:         (1) On these facts, a judge who has first-hand knowledge of an attorney’s insistence on undertaking a particular representation, notwithstanding the judge’s prior warnings about a clear conflict of interest, must take “appropriate action.”
(2) Where the attorney’s conduct does not rise to such an egregious level that it seriously calls into question the attorney’s honesty, trustworthiness or fitness as a lawyer, the judge has full discretion to determine what action is “appropriate” under the circumstances. 

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(D)(2); Opinions 22-123; 21-78; 15-138/15-144/15-166; 10-85.

Opinion:

       The inquiring family court judge is presiding in a case where “an attorney for the children is insisting on filing adoption papers on behalf of proposed adoptive parents (current foster parents).” The judge believes this presents a conflict of interest for the attorney under the Rules of Professional Conduct because “the children are too young to waive in writing any actual or potential conflicts of interest in the matter.” The judge would like to advise the attorney in writing that the proposed representation is impermissible, citing attorney ethics rules and case law. The letter would also clarify the judge’s prior oral warning about the conflict, which the attorney apparently misinterpreted to mean that the attorney could represent the parents in an adoption proceeding, as long as a different attorney represented the children in that proceeding. The judge asks whether it is sufficient to send the letter the judge proposes, or whether the judge must also report the attorney to the grievance committee.

       A judge must always avoid even the appearance of impropriety (22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (22 NYCRR 100.2[A]). Therefore, 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]). If the two-prong test is met and the misconduct is so serious that it calls into question the attorney’s honesty, trustworthiness, or fitness as a lawyer, the judge must report the conduct to the appropriate disciplinary authority (see e.g. Opinions 21-78; 10-85).

       The two-prong test is clearly met here on the facts presented. The “substantial likelihood” prong is satisfied because the judge gained personal knowledge of all relevant elements of the alleged misconduct while presiding over the case (see Opinion 22-123). The “substantial violation” prong also is satisfied because the judge has already determined that it is necessary to respond to the attorney’s insistence on filing adoption papers on behalf of the parents, notwithstanding the judge’s warning that the attorney’s current clients, who are minors, lack the capacity to waive the conflict.

       Accordingly, the sole issue for our consideration is what constitutes “appropriate action” under the circumstances (22 NYCRR 100.3[D][2]). Specifically, is the judge’s proposed letter sufficient, or must the judge also report the attorney to the grievance committee? As we advised in Opinion 15-138/15-144/15- 166 (citations omitted):

In the vast majority of instances, even after the judge decides it necessary to take “appropriate action,” the issue of what action is “appropriate” under the circumstances is nevertheless within the judge’s discretion.

Reporting to a disciplinary body is not mandatory unless the conduct at issue seriously calls into question a lawyer’s or judge’s honesty, trustworthiness or professional fitness, thus warranting, at the very least, an inquiry by the appropriate disciplinary body.

By contrast, if the judge concludes the conduct, though a substantial violation of ethics rules, does not reach that level of egregiousness, the judge has the discretion to determine that some lesser action is appropriate under the circumstances.

         Here, the facts set forth in the inquiry do not clearly reach the level of egregiousness that requires reporting the attorney. Accordingly, the judge has full discretion about what action is appropriate under the circumstances. We therefore conclude the proposed letter is sufficient.