March 19, 2020
Digest: A judge may, but is not ethically required to, report a non-attorney who attempted to appear before the judge on behalf of “client.”
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(D)(1)-(2); 101.1; Opinion 19-96.
The inquiring judge is presiding in a case with multiple parties. One litigant was being “represented” by an individual who is apparently not authorized to practice law in New York State or elsewhere and attempted to deceive the court about his/her status. The judge has barred the non-attorney from appearing on the record or in conference but asks if he/she is ethically required to take any further action, including “whether any specific record should be made.”
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). When a judge receives information indicating a substantial likelihood that “a lawyer” or “another judge” has committed a substantial violation of the applicable professional ethics rules, he/she must “take appropriate action” (22 NYCRR 100.3[D]-).
A judge’s disciplinary obligations under Section 100.3(D) pertain only to conduct by “a lawyer” or “another judge” (see Opinion 19-96). Thus, where a non-party, who is neither an attorney nor a judge, unlawfully appears as counsel, a judge has no ethical obligation to take any action (see id.). Here, too, the judge need not report the conduct, although he/she may do so, if he/she chooses, in his/her sound discretion.
For completeness, we note that whether the judge needs to make “any specific record” concerning the incident is a legal question we cannot address (see generally 22 NYCRR 101.1).