Opinion 89-74

September 12, 1989

Digest:         Judge who receives letter from an attorney who is the associate of another attorney who represented a criminal defendant sentenced by judge, which letter demands explanation of reasons for sentence, should report attorney to disciplinary committee if judge concludes that attorney substantially violated the code of professional responsibility.

Rules:          22 NYCRR 100.3(b)(3); DR 1-102(A); DR 1-102(B), Ops. Adv. Comm. on Jud. Ethics 89-54.

Opinion:

         A part-time justice who is not a lawyer imposed a fine on a criminal defendant whom the justice sentenced. An associate of the defense attorney, not an attorney of record in the criminal case, subsequently wrote a letter to the justice, without notice to the district attorney, demanding an explanation of the sentence, indicating that the attorney might request an inquiry by judicial administrators if the justice’s action were repeated in the future. The attorney indicated a belief that the justice had ignored a plea bargain arrangement.

         The justice asks the committee whether or not the justice is obligated to file a complaint against the attorney with the appropriate professional discipline committee.

         The Advisory Committee on Judicial Ethics is not authorized to construe the provisions of the Code of Professional Responsibility, and therefore cannot advise whether or not that Code might have been substantially violated by the attorney. Relevant provisions of the code might be DR 1-102(A)(5) which provides that a lawyer shall not engage in conduct that is prejudicial to the administration of justice and DR 1-102(B) which provides that a lawyer shall not knowingly make a false accusation against a judge or other adjudicatory officer.

         The governing provision of judicial ethics is section 100.3(b)(3) of the Rules of Judicial Conduct of the Chief Administrator of the Courts, which requires 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 Committee previously (see Op. Adv. Comm. on Jud. Ethics 89-54) has construed this provision as requiring a judge to report an attorney whom the judge believes has substantially breached the Code of Professional Responsibility.

         The judge in this case first must determine if in the judge’s opinion the attorney has substantially breached the Code of Professional Responsibility and must report the attorney’s conduct to appropriate disciplinary authorities if the judge concludes that there was a substantial violation by the attorney, but not if the judge concludes that there was no substantial violation.