Opinion 24-143
September 12, 2024
Digest: On these facts, the inquirer (1) has full discretion to determine whether he/she has received sufficient information indicating a “substantial likelihood” that an attorney has committed a “substantial violation” of the Rules of Professional Conduct and, if so, what action is appropriate; and (2) need not take any action with respect to a judge as the initial two-prong test is not met.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(B)(7); 100.3(D)(1)-(2); Opinions 24-73; 23-243; 22-164; 22-153; 22-148; 22-33; 18-58; 15-119; 14-140; 13-146; 10-85; Matter of Roshia v. Thiel, 110 AD3d 1490, 1491 (4th Dept 2013).
Opinion:
An attorney scheduled for an in-person appearance before the inquirer requested a last-minute adjournment outside of regular business hours due to a purported conflict. Specifically, the attorney provided an affirmation of engagement saying he/she would be “actually engaged in trial” elsewhere in the same courthouse before Judge X at the scheduled time. On reviewing Judge X’s posted calendar, the inquirer concluded that the purported conflict was extremely unlikely to materialize. The inquirer—who had previously rejected the attorney’s request to appear virtually that day—insisted on maintaining the scheduled in-person appearance unless the attorney was “actually taking testimony” at that time. When the case was called, the attorney and petitioner did not appear, but opposing counsel appeared with the respondent and asked the inquirer to dismiss the petition. The inquirer ultimately granted this request, but only after checking various sources to try to locate the attorney. Thus, when Judge X reached out to the inquirer about the situation in an apparent effort to allow the petition to be heard on the merits,[1] the inquirer had acquired an unusual level of information about the attorney’s movements and was in a position to question the accuracy of Judge X’s remarks. The attorney subsequently submitted a motion and affirmation seeking to restore the case to the calendar, which likewise contain statements that are inconsistent with the results of the inquirer’s investigation. The inquirer now asks if it is necessary to report the attorney and/or Judge X.
Judges and quasi-judicial officials must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Accordingly, if they receive information indicating a “substantial likelihood” that an attorney or another judge has committed a “substantial violation” of applicable rules of professional ethics they must take “appropriate action” (22 NYCRR 100.3[D][1]-[2]).
The determination of whether this two-prong test has been met ordinarily rests within the discretion of the inquiring judge, who is presumptively “in the best position to evaluate and assess all relevant, known circumstances” (Opinions 18-58; 14-140; see also Opinion 22-148 [noting importance of this principle where judge lacks personal knowledge of facts underlying allegation]). The judge need not undertake any investigation of the alleged misconduct but may instead discharge his/her disciplinary responsibilities based on facts already known to him/her without further inquiry (see e.g. Opinions 23-243; 22-164; 22-148).
If a judge concludes that either of the two elements is missing, the judge need not take any action (see e.g. Opinions 23-243; 22-153; 15-119). Conversely, if a judge concludes, based on information received, both that there is a “substantial likelihood” that the attorney or other judge has committed professional misconduct, and that such misconduct, if proved, would also constitute a “substantial violation” of the Rules of Professional Conduct or the Rules Governing Judicial Conduct, then the judge must take “appropriate action” (see id.).
Because what constitutes “appropriate action” depends on the circumstances of each case, it is ordinarily left to the judge’s discretion to determine (see e.g. Opinions 22-153; 13-146; 10-85).
Indeed, we do not generally require reporting unless the two-prong test is met and the apparent misconduct is so egregious that it warrants investigation by a disciplinary authority. For example, if the judge concludes the misconduct seriously calls into question an attorney’s honesty, trustworthiness, or fitness as a lawyer, or if the misconduct seriously calls into question a judge’s fitness to continue in office, the judge must report the conduct to the appropriate disciplinary authority (see e.g. Opinions 23-243; 22-164; 22-153). By contrast, if the misconduct, although substantial, does not reach that level of seriousness, the judge has the discretion to take some other, less severe action (see id.).
Application to the Present Facts
With respect to the attorney, we see no reason to deviate from the usual rule. Accordingly, the inquirer has full discretion to determine whether he/she has received sufficient information indicating a “substantial likelihood” that the attorney in question has committed a “substantial violation” of the Rules of Professional Conduct and, if so, what action is appropriate (see e.g. Opinion 10-85).
If the inquirer reports the attorney to the attorney grievance committee, “he/she must thereafter disqualify in all cases involving that attorney during the pendency of the disciplinary complaint and for two years after its resolution” (Opinion 24-73).
With respect to Judge X, however, we conclude the facts as set forth in the inquiry are insufficient to meet the initial “substantial likelihood” threshold (see e.g. Opinions 22-148; 22-33; 15-119). There is nothing to suggest that Judge X was even aware of the attorney’s scheduled appearance before the inquirer, let alone complicit in any effort (if there was one) to circumvent it. While the inquirer describes some inconsistencies in Judge X’s informal account of the attorney’s activities, “[t]here could be multiple scenarios that would lend themselves to this sequence of events without a violation of the Rules” (Opinion 22-33), including a possible intention to encourage handling the matter “efficiently and fairly” (22 NYCRR 100.3[B][7]; cf. Matter of Roshia v. Thiel, 110 AD3d 1490, 1491 [4th Dept 2013] [“[D]efault orders are disfavored in cases involving the custody or support of children.”]). On these facts, we conclude the inquirer need not take any action with respect to Judge X as the initial two-prong test is not met.
[1] There is no suggestion that Judge X was familiar with the litigants and/or the underlying facts or otherwise attempted to weigh in, directly or indirectly, on the merits of the matter.