Opinion 24-139

September 12, 2024

Digest:  (1) Where an attorney has electronically filed an exhibit to a motion purporting to show that opposing counsel failed to comply with the attorney registration requirements of Judiciary Law §468-a, a judge should afford the allegedly delinquent attorney an opportunity to demonstrate that he/she filed the mandatory registration statement and/or paid the prescribed fee.  The judge may do so by letter copied to all counsel directing the allegedly delinquent attorney to provide proof of compliance (or an extension, excuse, or exception) within 60 days. 
(2) Whether the letter must be electronically filed to the case in which the motion was filed is a legal/administrative question we cannot address.

            (3) Unless the allegedly delinquent attorney establishes that he/she was in compliance at the time of his/her appearance in the case, the judge must report the attorney to the appropriate Appellate Division of the Supreme Court for any action the Appellate Division deems appropriate.

Rules:   Judiciary Law §§ 212(2)(l); 468-a; 22 NYCRR 100.2(A); 100.3(B)(6); 100.3(D)(2); 101.1; Opinion 10-106.

Opinion:

          In a civil matter before the inquiring judge, an attorney filed (as an exhibit to a motion) a printout from the NYS Attorney Registration Unit purporting to show that opposing counsel is in “delinquent status” with his/her NYS attorney registration.  All filings in the case are made via New York State Courts Electronic Filing (NYSCEF).  The inquiring judge plans to write a letter to the allegedly delinquent attorney and direct him/her to provide proof of compliance (or an appropriate extension, excuse, or exception) within 60 days.  The judge would also provide a copy of the letter to the complaining attorney.  The judge asks: 1) whether he/she must file the letter in NYSCEF or mail it to both attorneys; and 2) whether the judge’s obligations end if the allegedly delinquent attorney clears the delinquency within 60 days.

          A judge must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]) and must not “initiate, permit, or consider ex parte communications” unless an exception applies (22 NYCRR 100.3[B][6]).  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 we explained in Opinion 10-106 (footnote and citations omitted):

Every attorney and counselor-at-law admitted to practice in New York State must file a registration statement and pay a registration fee biennially.  Noncompliance constitutes conduct prejudicial to the administration of justice and must be referred to the appropriate Appellate Division of the Supreme Court for disciplinary action.

…

[B]ecause the Judiciary Law imposes a reporting requirement when an attorney has failed to file a registration statement and pay a fee biennially, it is the Committee’s view that a judge who has reason to believe that an attorney may not be in compliance should afford the attorney an opportunity to demonstrate that he/she filed the mandatory registration statement and/or paid the prescribed fee to avoid an unnecessary report to a disciplinary committee.  Thereafter, if the attorney does not produce satisfactory evidence of compliance, the judge must report the attorney to the appropriate Appellate Division of the Supreme Court for disciplinary action.

          Here, we conclude that the proposed letter to the allegedly delinquent attorney, copied to opposing counsel, would certainly afford the attorney an opportunity to demonstrate that he/she was current in his/her registration at the time of his/her appearance in the case (see id.).  Whether the letter must be e-filed in NYSCEF is primarily a legal and/or administrative question, rather than an ethical one, and thus we cannot address it (see generally Judiciary Law § 212[2][l]; 22 NYCRR 101.1).

Finally, unless the allegedly delinquent attorney establishes that he/she was in compliance at the time of his/her appearance in the case, the judge must report the attorney to the appropriate Appellate Division of the Supreme Court for any action the Appellate Division deems appropriate (see Opinion 10-106).