Opinion 89-54

May 25, 1989

NOTE: Please refer to Opinion 10-85 for updated guidance on a judge's disciplinary responsibilities under Section 100.3(D)(2).  In connection with the present opinion, the Committee further noted that "the Committee has come to believe that its prior use of the phrase 'substantial violation' as a defined term or term of art may be confusing." 

Topic:          Obligation of judge to report ethical violation by attorney to appropriate disciplinary authorities.

Digest:         While a judge is required to report substantial ethical misconduct by an attorney to appropriate disciplinary authorities, necessarily the judge first must exercise reasonable judgment to determine whether a substantial ethical violation, in fact, was committed.

Rules:          22 NYCRR 100.3(b)(3 , 100.3(a)(4); DR7-110(B)(4); Canon 3-A(4) of the Code of Judicial Conduct

Opinion:

         In the course of a proceeding to review the grant of parole to a convicted felon, which had engendered considerable public interest, the justice presiding, upon stipulation of the attorneys for the parties, agreed to consider letters from the victim, the victim’s family and friends and supporters. One letter submitted was written by a local public official who also is an attorney. The justice did not consider that communication, but now asks the Committee whether the justice is obliged to report the attorney to appropriate disciplinary authorities for the ethical violation of submitting an unsolicited ex parte communication to the court.

         The Rules of Judicial Conduct of the Chief Administrator of the Courts (22 NYCRR 100.3(b)(3)) require a judge to “take or initiate appropriate disciplinary measures against a judge or lawyer for unprofessional conduct of which the judge may become aware.”

         The Code of Professional Responsibility adopted by the New York State Bar Association (DR7-110(B)) states in part:

In an adversary proceeding, a lawyer shall not communicate .... as to the merits of the cause with a judge or an official before whom the proceeding is pending, except .... 4. As otherwise authorized by law or section A(4) under Canon 3 of the Code of Judicial Conduct.

Section A(4) of Canon (3) of the Code (see also 22 NYCRR 100.3(a)(4)) provides in part:

A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law, and except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding.

         The Committee believes that the rules and canons require a judge to report to the appropriate disciplinary authorities any instance of a significant or substantial ethical violation by an attorney of which the judge becomes aware. An unsolicited ex parte communication from an attorney to a judge in an adversarial proceeding, if not legally justified, may constitute such a substantial breach.

         However, while the Committee cannot interpret the Code of Professional Responsibility, the Rules of Judicial Conduct imply that a judge, before reporting an attorney’s conduct, is required to exercise reasonable judgment in determining whether, under all the circumstances, the attorney has acted in a substantially unethical manner. A substantial violation of ethics is one which raises a question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer. In the Committee’s opinion, a judge need not report an unsubstantial violation.

         The Committee notes that the most recent draft revision of the Code of Judicial Conduct requires such reporting only “if the violation raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer”. Draft Revisions to ABA Code of Judicial Conduct, Discussion Draft May 1, 1989, Canon 3D(2).

         In this situation, it is not clear to the Committee, in view of the parties’ stipulation, that the attorney-public official actually acted unethically in any substantial way, in light of DR-7-110(B)(4). The attorney apparently wrote as a public official interested in the welfare of a constituent crime victim, not as an attorney for a litigant. The justice should review the facts, canons, and rules and determine whether, in the justice’s opinion, the attorney-public official acted in a substantially unethical manner, and only if the justice’s determination on that issue is in the affirmative, need the justice report the matter to disciplinary authorities.