Opinion 89-75

September 12, 1989

2013 Note: At this time, it appears that the reference to Executive Law §25(a)(2) is outdated. Many provisions concerning notaries public are found at Executive Law §§ 130-144.

Digest:         Judge must report to appropriate authorities apparent misconduct of lawyer if judge believes misconduct was substantial.

Rules:          22 NYCRR 100.3(b)(3); Ops. Adv. Comm. Jud. Ethics 89-54, 89-74, 88-85-88-103

Opinion:

         A judge recounts that during the course of a trial evidence was adduced that a lawyer, acting as a notary, may have notarized a client’s signature in violation of section 25(a)(2) of the Executive Law. The judge asks whether it is the judge’s obligation to advise the grievance committee of the local bar association or the county district attorney concerning that conduct.

         The Committee refers the judge to three previous opinions of the Committee. In Joint Opinion 88-85, 88-103 the Committee stated that a judge has the discretion to determine whether or not to advise the appropriate enforcement authorities of any criminal activity or misconduct on the part of a litigant or witness that is revealed in the course of a proceeding. That is a general rule.

         With respect to misconduct by a lawyer, the Committee notes that the particular governing provision is section 100.3(b)(3) of the Rules of Judicial Conduct of the Chief Administrator of the Courts, which reads as follows:

(3) a judge shall take or initiate appropriate disciplinary measures against a judge or lawyer for unprofessional conduct of which the judge may become aware.

         In Opinions 89-54 and 89-74 the Committee advised that a judge first must determine whether or not the specific conduct of a lawyer which troubles the judge constitutes, in the judge’s opinion, a “substantial” violation of professional ethics. If it does, the judge should report that conduct; if it does not, the judge has no reporting obligation. Insubstantial ethical violations need not be reported. The Committee, however, is not authorized to construe provisions of the Code of Professional Responsibility, and therefore, cannot advise a judge whether, as a factual matter, any particular conduct by an attorney constitutes a substantial violation of the Code.

         See Ops. Adv. Comm. Jud. Ethics 89-54 , 89-74 , 88-85-88-103.