May 5, 2022
Digest: A judge who has no personal knowledge that attorney-defendants impermissibly contacted represented plaintiffs in a matter pending before the judge is not required to report the attorneys to the grievance committee.
Rules: Judiciary Law §§ 9; 90(10); 22 NYCRR 100.2; 100.2(A); 100.3(D)(2); 100.3(E)(1); 22 NYCRR pt 1200, Rule 4.2(c); Opinions 22-43; 21-45; 20-213; 20-127; 17-06; 16-132; 15-138/15-144/15-166; 13-146.
The inquiring judge is presiding in a civil matter where certain defendants, represented by counsel, are themselves attorneys. Plaintiff’s counsel has now made an emergency application, essentially on the eve of trial, alleging that the attorney-defendants “made impermissible contact with the plaintiff” on multiple occasions, including at least one written communication. The judge notes that the attorney ethics rules prohibit a lawyer who is represented by counsel in a matter from communicating about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer “gives reasonable advance notice to the represented person’s counsel that such communications will be taking place” (22 NYCRR pt 1200, Rule 4.2[c]). Although plaintiff’s counsel asserts that no such advance notice was given, the inquiring judge has no independent knowledge of the attorney-defendants’ conduct, and the judge notes that plaintiff’s counsel has previously engaged in litigation tactics “of highly questionable merit.” The judge asks if the attorneys must be reported to the grievance committee and, if so, whether the obligation may be deferred until the conclusion of the pending matter.
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]). Therefore, a judge who has “received information” indicating a “substantial likelihood” that a lawyer has committed a “substantial violation” of the Rules of Professional Conduct must take “appropriate action” (22 NYCRR 100.3[D]).
Whether this two-prong test is met – i.e. whether a judge possesses information indicating a “substantial likelihood” that an attorney has committed a “substantial violation” of the attorney ethics rules - is typically within the inquiring judge’s discretion, because the inquiring judge is in the best position to evaluate and assess all relevant, known circumstances, including the reliability of the information known to the judge (see Opinion 15-138/15-144/15-166 [determination “must be confined to the judge’s discretion in all but the clearest and most unambiguous cases”]). The judge, however, is under no ethical obligation to investigate whether allegations of misconduct are true (see Opinions 16-159; 07-82). Rather, the judge may discharge their disciplinary responsibilities based on those facts already known to the judge without further inquiry (see Opinion 13-146).
Here, the inquiring judge has no first-hand knowledge of the nature, timing, or tenor of the communications between the attorney-defendants and the plaintiff and/or plaintiff’s counsel. Moreover, the sole source of the allegations is plaintiff’s counsel, an individual who has, in the inquiring judge’s view, engaged in tactics “of highly questionable merit” over the course of the litigation. On these facts, the “substantial likelihood” prong is not clearly met (see Opinions 17-06 [judge has “wide discretion” to determine substantial likelihood where defense counsel advised that a court-certified interpreter, a licensed attorney, went beyond mere translation and gave defendant legal advice]; 16-132 [judge had no direct personal knowledge of purported sexual misconduct by attorney]). Accordingly, we conclude the judge is not ethically required to take any disciplinary action whatsoever with respect to these attorney-defendants.
The judge retains full discretion to address the misconduct allegations in any legally appropriate manner, should the judge choose to do so. If the judge ultimately decides to report these attorneys to the grievance committee, the judge must disqualify in all matters where the reported attorneys appear, both while the disciplinary matter is pending and for two years thereafter (see 22 NYCRR 100.3[E]; Opinion 20-213). To protect the attorneys’ right to confidentiality, the judge may not reveal the reason for the disqualification except to the extent required by law, an issue on which we cannot comment (see Opinion 21-45; Judiciary Law §§ 9; 90). Finally, “[b]ecause remittal requires full disclosure of the basis for disqualification, sufficient for the parties and their counsel to freely and affirmatively consent to waive the conflict, we continue to believe remittal is not appropriate until and unless the attorney waives confidentiality, or the grievance committee issues a public disciplinary decision” (Opinion 20-213 fn 3 [citations and internal quotation marks omitted]).
In order to avoid the need for immediate disqualification in the pending matter, even if the judge decides to make a report to the grievance committee, the judge may await the conclusion of proceedings to do so (see Opinions 20-213; 20-127).