Opinion 23-243

February 1, 2024

Digest:  (1) A judge who receives reliable information indicating a substantial likelihood that his/her co-judge has used a seemingly unaffiliated attorney to represent clients on certain cases that originated in their court, and arranged for those cases to be assigned to himself/herself, must report the co-judge to the Commission on Judicial Conduct. 

            (2) If the judge further concludes, based on the information already known to him/her, that this seemingly unaffiliated attorney is an associate of the co-judge or is otherwise undertaking eviction work on behalf of the co-judge, the inquiring judge cannot accept eviction papers filed by that attorney.

            (3) The judge should consider whether he/she has received information indicating a substantial likelihood that the seemingly unaffiliated attorney has committed a substantial violation of the Rules of Professional Conduct; if so, the judge must take appropriate action.

Rules:   Judiciary Law §§ 16-17, 471; 22 NYCRR 100.2; 100.2(A); 100.3(D)(1)-(2); 100.6(B)(2)–(3); Opinions 22-164; 22-148; 21-19; 17-86; 15-138/15-144/15-166; 13-146.

Opinion:

          The inquiring judge has become aware of facts suggesting that the inquirer’s co-judge, a part-time attorney judge, may be using “a seemingly unaffiliated attorney” to file eviction cases on behalf of the co-judge’s landlord client(s) in their court, over which the co-judge then presides.  The situation was discovered when a tenant-respondent contacted the court clerk regarding an eviction case that had been filed by the attorney and was scheduled to be heard by the co-judge.  The tenant advised the court clerk that the tenant had no idea who the attorney was, but that the tenant had spoken at length and exclusively with the co-judge, who advised that he/she represented the landlord-petitioner and had facilitated a settlement of the tenant’s case.  Once the landlord/tenant case was settled, the matter was withdrawn from the co-judge’s docket before any court appearance took place.  The inquirer further advises that he/she was able to review an eviction petition filed by the co-judge in another court, compared it with “several” eviction papers filed by the attorney in the co-judge’s court, and found that the papers “appear identical.”  The inquirer has no personal knowledge of the alleged misconduct but, based on the information received, believes the co-judge may be “bringing [his/her] own landlord-tenant cases to be heard before [him/herself] in our court, through the use of [the attorney], a potential strawman.”  The inquirer already reported these facts to the district administrative office, but now asks (1) if the incident must also be reported to the Commission on Judicial Conduct, and (2) if the judge has any obligations when the attorney appears before him/her.

          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 part-time judge “shall not practice law in the court on which the judge serves and shall not act as a lawyer in a proceeding where the judge has served as a judge or in any proceeding related thereto” (22 NYCRR 100.6[B][2]; see also Judiciary Law §§ 16-17).  Additionally, a part-time judge “shall not permit his or her partners to practice law in the court in which he or she is a judge” (22 NYCRR 100.6[B][3]; see also Judiciary Law § 471).  Significantly, “the practice of law is not confined to appearances in court, but includes all actions taken on behalf of clients in matters connected to the law” (Opinion 17-86 [citation omitted]).  A judge who receives information indicating a “substantial likelihood” that an attorney or another judge has committed a “substantial violation” of the applicable disciplinary rules must take “appropriate action” (see 22 NYCRR 100.3[D][1]-[2]).

The Co-Judge’s Alleged Misconduct

          A judge is not required to conduct an investigation of alleged misconduct, but rather, may discharge his/her disciplinary responsibilities based on facts already known to the judge without further inquiry (see Opinions 22-148; 13-146).  Where, as here, the inquiring judge has no direct personal knowledge of the underlying allegations, he/she “‘must evaluate and assess all relevant, known circumstances, including the reliability of the information known to [him/her]” (see Opinion 15-138/15-144/15-166).   Similarly, in assessing whether a violation is substantial, a judge may consider various factors, including the experience level of the judge, whether the violation was willful or inadvertent, whether it’s part of a pattern of improper behavior or an isolated incident, whether it reflects adversely upon the individual’s honesty, trustworthiness or fitness as a judge, and whether the misconduct is likely to undermine public confidence if not investigated or addressed (see id.).  If, having considered the information he/she has received, the judge concludes that there is a “substantial likelihood” of a “substantial violation” of the Rules, the judge is obligated to take action (see id.).  The action the judge must take depends on the nature of the misconduct (see Opinion 13-146).  

          Where the two-prong test is met and the alleged misconduct seriously calls into question a judge’s honesty, trustworthiness, or professional fitness, we have said there is an affirmative duty to report the incident to the Commission on Judicial Conduct so that the issue can be investigated (see Opinions 21-19; 15-138/15-144/15-166).  

          The alleged misconduct at issue here, that the co-judge may be representing clients on matters originating in his/her own court through the use of a potential straw-man attorney, and further taking steps to ensure the cases will be assigned to the co-judge personally, is likely to undermine public confidence in the judiciary both because of its deceptive, self-interested nature and because “it suggests, at the very least, an attempt by the co-judge to obtain [legal fees] in connection with a case that originated in his/her court” (Opinion 13-146 [addressing allegations judge undertook “legal work in connection with a matter that originated in the judge’s court, and over which the judge previously presided”]).  As such, if the inquiring judge believes the information he/she has received is reliable, he/she has an affirmative duty to report the co-judge to the Commission on Judicial Conduct (see id.).    

The Attorney’s Conduct

          With respect to the second question, whether the inquiring judge has any obligations when the alleged straw-man attorney appears, the rules expressly state that a part-time judge “shall not permit the practice of law in his or her court by the law partners or associates of another judge of the same court” (22 NYCRR 100.6[B][3] [emphasis added]).  If the inquiring judge, based on the information known to him/her, concludes that the attorney is an “associate” of the co-judge or is otherwise undertaking legal work on behalf of the co-judge and/or his/her clients, the inquiring judge cannot accept eviction papers filed by the attorney (see Opinion 17-86 [advising that judge may not permit his/her part-time co-judge’s partners and associates to engage in practice of law before him/her and, thus, may not accept papers for filing which were evidently prepared by co-judge’s partner]).

          The judge should also consider whether he/she has received information indicating a “substantial likelihood” that the attorney has committed a “substantial violation” of the Rules of Professional Conduct; if so, the judge must take “appropriate action” (22 NYCRR 100.3[D][2]).  On the facts presented, we emphasize that each element of this analysis is left entirely to the inquiring judge’s discretion.  If the judge concludes either the “substantial likelihood” or the “substantial violation” prong is not met, he/she need not take any action.  If the judge concludes both prongs are met, the judge must take “appropriate action,” which is ordinarily left to the judge’s discretion.  The judge need not report the attorney’s conduct to the grievance committee unless the inquiring judge determines the two-prong test is met and further concludes the alleged misconduct seriously calls into question the attorney’s honesty, trustworthiness, or professional fitness (see e.g. Opinion 22-164 [setting forth standard and applying it to three different attorneys]).  

          For completeness, we note that if the inquiring judge does report the attorney to the grievance committee, the judge must disqualify in all matters where the attorney appears, both while the disciplinary matter is pending and for two years thereafter, and remittal is not available (see id.).