Opinion 10-85

June 10, 2010

Amended December 9, 2011 

Digest:         When a judge receives information indicating a substantial likelihood that a lawyer’s conduct constitutes a substantial violation of the Rules of Professional Conduct, but does not rise to a level that seriously calls into question the attorney’s honesty, trustworthiness or fitness as a lawyer, the judge has the discretion to take some appropriate action other than reporting the conduct to a disciplinary authority.

Rules:          22 NYCRR 100.2[A]; 100.3[D][2]; Part 1200; Opinions 09-142; 08-198; 08-08; 07-129; Joint Opinion 05-105/05-108/05-109; Opinions 05-30; 04-116; 04-74; 03-88; 01-09; 91-36 (Vol. VII); 89-54 (Vol. III).

Opinion: 

         In the course of a proceeding, an attorney admitted to a judge that he/she improperly notarized his/her client’s signature, purportedly as a matter of convenience. There appears to be no evidence that the attorney did so for any other reason or on any other occasion. The inquiring judge asks whether he/she must report the attorney’s conduct to the appropriate disciplinary authority.

         A judge must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, if a judge receives information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Rules of Professional Conduct (see 22 NYCRR Part 1200), he/she must take appropriate action (see 22 NYCRR 100.3[D][2]).

         This Committee has generally advised judges that they must determine whether there is a substantial likelihood that an attorney committed a substantial violation of the Rules of Professional Conduct because a judge is in the best position to evaluate and assess all relevant, known circumstances (see Opinions 08-198; 07-129).

         Only in relatively few instances has the Committee advised that a judge must report a lawyer’s alleged misconduct to a disciplinary authority. In those instances, based on the facts disclosed by the respective inquiring judges, the alleged substantial misconduct rose to such an egregious level that it seriously called into question the attorney’s honesty, trustworthiness or fitness as a lawyer (see e.g. Opinion 07-129 [judge should report attorney to appropriate attorney disciplinary committee where attorney admitted under oath that he/she committed perjury]). Accordingly, on those occasions, the Committee advised that the only appropriate action was to report the lawyer to the appropriate disciplinary authority. 

         However, when a judge receives information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Rules, but the conduct does not rise to such an egregious level that it seriously calls into question the attorney’s fitness as a lawyer, the judge has the discretion to take less severe, appropriate measures (see 22 NYCRR 100.3[D][2] [requiring a judge to take “appropriate action”]). Such measures may include, but are not limited to, counseling and/or warning a lawyer, reporting a lawyer to his/her employer, and sanctioning a lawyer (cf. Opinion 91-36 [Vol. VII] [where no improper motivation by non-lawyer judge, administrative measures constitute appropriate action]).

         What determines “appropriate action” in such inquiries depends upon all the surrounding circumstances known to the judge, including an assessment of whether the lawyer, if confronted by the judge, shows genuine remorse, contrition, or ignorance of a rule; whether the lawyer has any history of unprofessional or other conduct in violation of the Rules; or any other relevant conduct or factor known to the judge (cf. Opinion 08-08 [within judge’s discretion to report attorney for non-substantial violation to appropriate disciplinary committee or take other less severe action such as counsel, reprimand, admonish or sanction attorney]). We emphasize that a judge is under no ethical obligation to conduct investigations to determine how serious or minor any misconduct may be.

         Accordingly, it appears in this inquiry that there is a substantial likelihood that the attorney has committed a substantial violation of the Rules Governing Professional Conduct and, therefore, the judge must take “appropriate action” (22 NYCRR 100.3[D][2]). However, based on all the surrounding circumstances, the judge must determine whether the attorney’s conduct seriously calls into question the attorney’s honesty, trustworthiness or fitness as a lawyer. As an interim measure, the judge may interview the attorney and caution him/her, and may take into consideration how the attorney responds during this interview, in addition to other factors, including any made evident during that conversation. Ultimately, the judge must exercise his/her discretion to determine the appropriate action to take (see Opinion 08-198; cf. Opinions 08-08; 91-36 [Vol. VII]).

         December 9, 2011 Addendum

         Although the Committee has, in the past, consistently defined “substantial violations” as those that “implicate” an attorney’s honesty, trustworthiness or fitness as a lawyer (and therefore must be reported) (see e.g. Opinion 07-129; Joint Opinion 05-105/05-108/05-109; Opinions 05-30; 04-116; 04-74; 03-88; 89-54 [Vol. III]), 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.

         For example, judges may feel that an ethical violation is “substantial” simply because it is clear and unambiguous that an attorney has violated a rule, regardless of whether the violation calls into question the attorney’s fitness to practice law. And under the circumstances of the present inquiry, a falsely notarized signature might be said to “implicate” an attorney’s honesty to some degree, even though - under the specific circumstances presented - it might not seriously call into question the attorney’s fitness to practice law.

         To address these issues, the original version of this Opinion introduced the term “egregious” to describe which violations must be reported. However, after further consideration, the Committee believes that it is clearer simply to explain what it means by egregious, i.e., a violation that seriously calls into question an attorney’s honesty, trustworthiness or fitness to practice law. The purpose of the reporting requirement is not to punish attorneys for the slightest deviation from perfection, but to protect the public from attorneys who are unfit to practice law. This purpose is satisfied when judges report attorneys after receiving information indicating a substantial likelihood of a violation which is not only “substantial” in a general sense of the word, but which seriously calls into question the attorney’s fitness as a lawyer (see e.g. Opinions 09-142; 01-09). The change in terminology is not intended to change the result in any prior opinions and will be used in future opinions.