Opinion 24-178
December 12, 2024
Digest: Where a judge has information indicating a “substantial likelihood” that a lawyer has committed a “substantial violation” of the Rules of Professional Conduct, and the judge believes that the attorney’s conduct 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. However, the judge may wait until the conclusion of the proceeding to make the report.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(D)(2); Opinions 23-36; 22-123; 22-122; 18-170; 15-138/15-144/15-166; 13-61; 05-37.
Opinion:
A part-time lawyer judge is presiding in a case where one of the attorneys is the judge’s former employer; their business and financial relationship terminated approximately eight years ago. The judge is satisfied he/she can be fair and impartial and has repeatedly declined the attorney’s request that the judge recuse. After the judge’s initial refusal, the attorney called court staff and suggested it would be in the judge’s interest to recuse voluntarily because a formal motion for recusal “would not be good” for the judge. The judge instructed court staff to let the attorney know he/she “could file a written motion if necessary.” Rather than doing so, the attorney called the judge’s current employer “in an attempt to influence and persuade [him/her] into getting [the judge] to recuse from the matter.” In that conversation, the attorney again “threatened” to make a formal motion for the judge’s recusal, claiming this “would be really embarrassing” for the judge. In the attorney’s eventual formal motion for recusal, the attorney admitted this conversation under oath.[1] The judge believes the attorney’s conduct “was clearly an attempt to unduly influence my decision-making, and calls into question [the attorney’s] trustworthiness, honesty, and fitness as a lawyer.” On these facts, the judge asks if he/she must report the attorney to the grievance committee.
A judge must always avoid even the appearance of impropriety and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]). Therefore, a judge 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 misconduct is so serious that it calls into question the attorney’s honesty, trustworthiness, or fitness as a lawyer, the judge must report the conduct to the appropriate disciplinary authority (see Opinions 23-36; 22-122).
As the inquiring judge has direct, first-hand knowledge of the incident, including the attorney’s admission under oath, and has concluded the misconduct is a substantial violation, the initial two-prong test is clearly met. Therefore, the judge must take “appropriate action” (see e.g. Opinions 22-123; 22-122; 15-138/15-144/15-166). Here, the judge has concluded that the misconduct at issue was an effort to unduly influence the judge’s decision-making and seriously calls into question the attorney’s honesty, trustworthiness, or fitness as a lawyer. Therefore, the judge must report the attorney to the appropriate disciplinary committee (see Opinions 13-61; 05-37). After reporting the attorney, the judge must disqualify in all cases involving that attorney while the disciplinary matter is pending and for two years thereafter (see e.g. Opinion 22-123). The disqualification may not be remitted unless the attorney waives confidentiality, or the grievance committee issues a published disciplinary opinion (id.). However, we note that the judge may wait until the conclusion of the current proceeding to make the report (id.; see also Opinion 18-170).
[1] The judge first heard about the conversation from his/her current employer.