Opinion 91-114

October 31, 1991

Digest:         A judge must report to appropriate authorities apparent misconduct of a lawyer, if the judge reasonably believes that the misconduct of the attorney was substantial.

Rules:          22 NYCRR 100.3(b)(3)

Opinion:

         A judge has inquired whether the judge has a duty to act where the town attorney, who also is a special assistant district attorney, who prosecutes code violations in the town in which the judge is sitting, has appeared in the judge’s court as defense counsel for private clients on penal law and vehicle and traffic cases. The town attorney also has appeared in the judge’s court as counsel for private clients in civil cases.

         In reference to attorney misconduct, section 100.3(b)(3) of the Rules of the Chief Administrator states:

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

         As stated in Opinions 89-54, Vol. III, and in Opinions 89-74 and 89-75, both Vol. IV, a judge first must determine whether the specific conduct of a lawyer 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. The Committee, however, is not authorized to construe provisions of the Code of Professional Responsibility, and therefore, cannot advise a judge whether any particular conduct by any attorney constitutes a substantial violation of the Code. We note, however, that the New York State Bar Association Committee on Professional Ethics has published a number of opinions on related subjects.