Opinion 23-87
September 7, 2023
Digest: Where a court attorney-referee initially declines to consider an ex parte application from an attorney asking the referee to issue an order nunc pro tunc to rectify the attorney’s failure to timely file documents, and then denies the same application when made by motion on notice to all parties, the referee need not take any action unless the referee determines that the attorney’s actions constitute a “substantial violation” of the Rules of Professional Conduct. If so, the referee also has full discretion to determine what action is “appropriate” under the circumstances.
Opinion:
The inquiring court attorney-referee recently presided in an uncontested guardianship case involving an undocumented immigrant child. Shortly before the child’s 21st birthday, the referee issued an order finding that the child qualified as a special immigrant juvenile (SIJ).[1] However, the attorney for the child had already submitted the child’s SIJ petition to the immigration authorities before the order was issued, apparently assuming that the court order could be added later to an otherwise timely filed petition. This proved to be a mistake. The attorney then contacted the referee ex parte, forthrightly accepting responsibility but asking the referee to “enter an order with an earlier date, nunc pro tunc,” to rectify the late filing and “allow the child to adjust [their] immigration status.” The referee directed the attorney to make the application by way of motion on notice to the guardian, and the attorney did so. The referee then denied the application, deeming that the requested earlier date would create a false appearance that “the Family Court had already granted the application … at a time when the application was still being considered and had not been yet adjudicated.” The inquirer believes that the attorney’s motion constitutes a “request that the court engage in fraud” and asks whether there is an ethical obligation to report the attorney to the grievance committee.
Court attorney-referees must comply with the Rules Governing Judicial Conduct in performing their quasi-judicial duties and otherwise “so far as practical and appropriate” use the rules to guide their conduct (see 22 NYCRR 100.6[A]). Like judges, they 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 referee 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 egregious that it seriously calls into question the attorney’s honesty, trustworthiness, or fitness as a lawyer, the referee must report the conduct to the appropriate disciplinary authority (see Opinion 10-85).
A. The Substantial Likelihood Prong
Here, the inquiring referee has direct knowledge that an attorney made an ex parte application for judicial relief, which was then re-submitted on notice and denied on the merits. Thus, it appears that the substantial likelihood prong has been met.
B. The Substantial Violation Prong
As there is a substantial likelihood of at least one ethical violation – an inappropriate ex parte application - the referee must next consider whether the violation is “substantial.” As we said in Opinion 15-138/15-144/15-166 (citations omitted):
In determining whether a violation is “substantial,” the judge may again consider a wide variety of factors, including (among many others) the experience level of the attorney or judge, whether the violation appears to have been inadvertent or willful, whether it appears to be part of a larger pattern of improper behavior or an isolated incident, whether it reflects adversely on the individual’s honesty, trustworthiness, and fitness as a lawyer or judge, and whether the violation, if it occurred as described, is likely to undermine public confidence in lawyers or judges if not investigated and addressed.
Here, we cannot determine, based on the information provided in the inquiry, whether the attorney’s conduct should be considered a “substantial violation.” When the referee refused to entertain an ex parte application for the requested relief, the attorney apparently resubmitted the application on notice. Further, while the inquiring referee uses the word “fraud” in describing the attorney’s request, that label is not necessarily determinative. For example, where an attorney was the defendant in “an uncontested action for annulment based on fraud,” but the attorney’s admissions did not suggest the attorney engaged in illegal or unethical conduct, we found that the judge need not take any action (see Opinion 18-24). Similarly, this inquiry does not reveal any clear attempt by the attorney to deceive the referee or the guardian; indeed, the attorney seems to have been forthright about the request and the reasons for it.[2] Accordingly, it remains in the inquirer’s sole discretion to determine whether this prong is met (see Opinion 08-198; cf. Opinion 23-36).
If the referee concludes this prong is not met, he/she need not take any action whatsoever with respect to the attorney’s conduct.
C. Appropriate Action
In the event the referee determines, based on the information already received, that there is a substantial likelihood of a substantial violation of the applicable ethics rules, the referee’s only obligation is to take “appropriate action,” as indicated by all the surrounding circumstances known to the referee at the time (see Opinions 10-85; 15-138/15-144/15-166).
Only in relatively few instances have we advised that a judge or quasi-judicial official must report a lawyer’s alleged misconduct to a disciplinary authority. In those instances, the alleged substantial misconduct rose to such an egregious level that it seriously called into question the attorney’s honesty, trustworthiness or fitness as a lawyer (see e.g. 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]; 07-129 [attorney admitted under oath that he/she committed perjury]).
Where the violation is substantial, but does not rise to such an egregious level to seriously call into question the attorney’s fitness as a lawyer, a judge or quasi-judicial official has the discretion to take other appropriate measures (see 22 NYCRR 100.3[D][2] [requiring “appropriate action”]). What determines “appropriate action” in such instances depends upon all the surrounding circumstances known to the judge or quasi-judicial official, including an assessment of whether the lawyer, if confronted, shows genuine remorse, contrition, or ignorance of a rule; whether the lawyer has any history of unprofessional or other conduct in violation of the Rules; or any other relevant conduct or factor known to the judge or quasi-judicial official (see Opinions 16-159; 08-198 [within judge’s discretion to report attorney for non-substantial violation to appropriate disciplinary committee or take other less severe action]). Such measures may include, but are not limited to, counseling and/or warning a lawyer, reporting a lawyer to his/her employer, and sanctioning a lawyer (see Opinion 91-36 [in the absence of improper motivation by non-lawyer judge, administrative measures constitute appropriate action]).
On the facts presented, we conclude that the question of what action, if any, is appropriate under the circumstances, is solely within the referee’s discretion.
[1] According to the referee, SIJ findings can “give undocumented children a path to legal permanent residence in the United States. These applications are time-sensitive and papers need to reach the federal authorities before a child’s 21st birthday.”
[2] As the application was denied, we need not reach the hypothetical question of whether the federal agency would have been “deceived” if it had received a second copy of the court’s SIJ order with an earlier date.