Opinion 23-36

March 23, 2023

Digest:  Where a judge concludes that an attorney disregarded a court directive and engaged in a deliberate deception, intended to perpetrate a fraud and deceive the parties and/or the court, the judge must report the attorney to the appropriate grievance committee.

Rules:   22 NYCRR 100.2; 100.2(A); 100.3(D)(2); Opinions 22-122; 20-213; 15-157; 14-88; 09-142; 02-85.

Opinion:

          The inquiring judge called a recess during a jury trial, partway through counsel’s direct examination of an expert witness, and instructed the witness “not to communicate with anyone about [their] testimony during the break.”  Upon returning to the courtroom, the judge learned that counsel “showed [the witness] a note during the break telling [them] how to answer the pivotal question that [counsel] was about to put forth.”  Counsel initially denied having done so, and attempted to conceal the note, but finally admitted it after the note was located and produced.  On these facts, the judge asks if it is mandatory to report the attorney to the appropriate 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]).  Therefore, a judge who receives 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]).

          As the judge has direct, first-hand knowledge of the incident and has concluded the misconduct is a substantial violation, the initial two-prong test is clearly met.  Therefore, the judge must take “appropriate action,” and the sole question for our consideration is what action is “appropriate” here. 

          “Appropriate action” depends on the facts and circumstances of the situation and is ordinarily left to the discretion of the judge who observed the attorney’s conduct (see Opinions 22-122; 14-88; 09-142).  However, where the judge concludes that the misconduct at issue seriously calls into question the attorney’s honesty, trustworthiness, or fitness as a lawyer, the judge must report the attorney to the appropriate disciplinary committee (see Opinions 22-122 [assistant district attorney admitted secretly altering the supporting materials for a wiretap order after the judge signed the order]; 20-213 [judge had personal knowledge that attorney knowingly assisted in effectuating a transfer of disputed real estate under false pretenses]; 14-88 [attorney appearing pro se testified under oath that the attorney used a fictitious bank account to shield the attorney’s law firm income from court-ordered child support payments]). 

          Here, notwithstanding the court’s directive that the witness not communicate with anyone about their testimony during the recess, the attorney communicated with the witness during the break by showing the witness a note and advising them how to answer a key question that was coming up.  The attorney’s action was in clear violation of a court directive and, as such, constituted misconduct (compare Opinion 09-142 [attorney “repeatedly acted in an extremely unprofessional manner in defiance of court directives”]) with Opinion 15-157 [“Absent a court directive or ethical rule requiring the attorneys to refrain from speaking to a non-party witness during a recess in the midst of a hearing,” attorney’s act in speaking to witness during break about subpoenaed materials “[did] not necessarily constitute attorney misconduct”]). 

          The attorney’s misconduct was further exacerbated when the attorney denied communicating with the witness and attempted to conceal the note.  Again, only after being confronted with the note did the attorney admit to communicating with the witness during the recess.

Where a judge concludes that an attorney “engaged in a deliberate deception intended to perpetrate a fraud and deceive the parties and/or the court, … the appropriate action is clear: the matter should be reported to the attorney disciplinary committee” (Opinion 02-85; see also Opinion 09-142).  The attorney’s admitted misconduct at issue here raises serious concerns about the attorney’s honesty and trustworthiness.  Accordingly, we conclude that the judge must report the attorney to the appropriate grievance committee.