Opinion 23-24
March 23, 2023
Digest: A judge who concludes there is a substantial likelihood that an attorney sought to compromise a criminal prosecution for personal financial gain must report that attorney to the grievance committee.
Rules: CPLR 4547; Judiciary Law § 9; 22 NYCRR 100.2; 100.2(A); 100.3(D)(2); 100.3(E)(1); 22 NYCRR pt 1200, Rule 8.4(d); Opinions 22-122; 21-86; 20-213; 17-56; 14-39; 13-146; 10-86; 07-82.
Opinion:
The inquiring supervising judge, in the course of their official duties, has become aware that certain attorneys attempted to settle a civil matter for a significant premium over its reasonably expected value, in return for compromising or thwarting a related criminal prosecution. The judge is satisfied that the information reviewed is both very reliable and very serious,[1] and asks if it is necessary to report the attorneys to the appropriate grievance committee.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge who receives 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][2]).
In general, where a judge learns an attorney is the subject of criminal charges, but has no personal knowledge of the circumstances underlying the charges, the judge need not take any action unless the judge concludes there is a substantial likelihood the charges are true (see Opinions 14-39; 10-86). Nor is the judge required to undertake any investigation to determine the facts (see Opinion 07-82). Rather, the judge may “discharge his/her disciplinary responsibilities based on the facts already known to the judge without further inquiry” (Opinion 13-146).
Here, by contrast, the inquiring judge has detailed knowledge of the alleged misconduct, gained from exercising their responsibilities as supervising judge and reviewing the actual communications at issue. As this judge has already concluded the misconduct likely occurred and is substantial in nature, the two-prong test is met. Therefore, the judge must take “appropriate action,” and the sole question for our consideration is what action is “appropriate” here.
“Appropriate action” depends on the facts and circumstances of the situation and is ordinarily left to the discretion of the judge who observed the attorney’s conduct (see Opinion 22-122). However, where the judge concludes that the misconduct at issue seriously calls into question the attorney’s honesty, trustworthiness, or fitness as a lawyer, the judge must report the attorney to the appropriate disciplinary committee (see id. [assistant district attorney admitted secretly altering the supporting materials for a wiretap order after the judge signed the order]).
In our view, the alleged misconduct seriously calls into question the attorneys’ fitness to practice law, as it evinces a willingness to obstruct a criminal investigation or prosecution − which is brought in the name of the People, not in the name of the victim(s) or other private individuals − for personal financial gain. Such conduct, if proved, is seriously prejudicial to the administration of justice (cf. 22 NYCRR pt 1200, Rule 8.4[d]; CPLR 4547 [permitting evidence of “accepting, or offering or promising to accept, any valuable consideration in compromising or attempting to compromise a claim” to be admitted for the purpose of “proof of an effort to obstruct a criminal investigation or prosecution”]). Such matters, at the very least, warrant an investigation by the appropriate disciplinary authority. Therefore, the judge must report the attorneys.
Once the judge reports a lawyer, the judge must disqualify from matters involving that lawyer while the disciplinary complaint is pending and for two years thereafter (see Opinions 21-86; 17-56; 22 NYCRR 100.3[E][1]). Because 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, remittal is not appropriate until and unless the attorney waives confidentiality, or the grievance committee issues a public disciplinary decision (see Opinion 20-213 fn 3).[2]
[1] In the course of reviewing the file and empaneling a grand jury, the judge personally reviewed the attorneys’ subpoenaed communications.
[2] What the judge must state on the record or in writing pursuant to Judiciary Law § 9, when confidentiality has not been waived, is a legal question we cannot resolve (see Opinion 21-86).