Opinion 23-242

 

February 1, 2024

 

Digest:  (1) A judge has no ethical duty to investigate allegations from the court attorney’s former romantic partner about the court attorney’s conduct before working for the judge. 
(2) Where the court attorney has admitted certain allegations which, in the judge’s view, constitute substantial professional misconduct, the judge must take appropriate action. 
(3) With respect to other allegations of a more personal and private nature, the judge need not take any action unless the judge concludes he/she has received information indicating a substantial likelihood that the attorney has committed a substantial violation of Rules of Professional Conduct.
(4) On these facts, the judge has no ethical obligation to report the court attorney to the grievance committee or terminate the court attorney’s employment.

 

Rules:   22 NYCRR 100.2; 100.2(A); 100.3(D)(2); Opinions 23-113; 22-164; 22-148; 21-78; 18-58; 16-132; 15-138/15-144/15-166; 10-85; 04-116.

 

Opinion:

 

          The inquiring judge received an e-mail from a former romantic partner of the judge’s new court attorney, making several claims about the court attorney’s behavior before the court attorney’s employment commenced.  The judge asked the court attorney about two of the allegations, concerning misuse of the notary stamp and the “disclosure of attorney client work product.” Based on the court attorney’s admissions, the judge is satisfied that these constitute “clear lapses in professional judgment.”  The judge has not asked the court attorney about the remaining allegations, which involve more personal and private conduct such as repeated infidelity and other sexual improprieties.  The judge asks if it is mandatory to report the court attorney to the attorney grievance committee, to take any action with respect to the remaining allegations, or to terminate the court attorney’s employment. 

 

          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 information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Rules of Professional Conduct must take appropriate action (see 22 NYCRR 100.3[D][2]).  If the misconduct is so serious that it calls into question the attorney’s honesty, trustworthiness, or fitness as a lawyer, the judge must report the conduct to the appropriate disciplinary authority (see Opinion 10-85).

 

Overview of Standards

 

          The judge must determine whether there is a substantial likelihood that the attorney engaged in the alleged misconduct and, if so, whether that conduct constitutes a substantial violation of the Rules of Professional Conduct, based upon the information available to the judge (see Opinion 22-164).  A judge is not required to investigate the allegations and may discharge his/her disciplinary responsibilities based on facts known to the judge without further inquiry (see Opinion 22-148).  In situations such as this, where the inquiring judge has no direct personal knowledge of the facts supporting the allegations, he/she must “evaluate and assess all relevant, known circumstances, including the reliability of the information known to the judge” (Opinion 15-138/15-144/15-166).  A judge may also consider various factors in assessing whether a violation is substantial, including the experience level of the attorney, whether the violation was willful or inadvertent, whether it was part of a pattern of improper behavior, and whether the misconduct is likely to undermine public confidence in attorneys or the judiciary if unaddressed (see id.). 

 

          If the judge concludes that either prong is not met, the judge need not take any action (see id.).  Conversely, if the judge, concludes that there is a substantial likelihood that the court attorney has committed a substantial violation, then he/she must take “appropriate action.”  The action the judge must take depends on the nature of the misconduct, and is ordinarily left to the judge’s discretion (see id.). 

 

          Only where the two-prong test is met and the alleged misconduct seriously calls into question an attorney’s honesty, trustworthiness, or professional fitness is there an affirmative duty to report the incident to the grievance committee so that the issue can be investigated (see Opinions 23-113; 18-58; 17-90). 

 

Notary Stamp

 

          The e-mail alleged that the court attorney misused a notary public stamp in connection with an attempt to authorize the court attorney’s then-partner to use the court attorney’s credit card for a specified transaction.  The attached images purport to show that the court attorney gratuitously included his/her notary public information below his/her own signature.[1]  On questioning from the judge, the court attorney “admitted to improperly using the notary stamp to give the appearance of more authority.”

 

          Although the inquiring judge had no obligation to investigate the accusations, the court attorney’s admission here is sufficient to establish the “substantial likelihood” prong.  Moreover, in Opinion 10-85, we advised that an attorney’s misuse of their notary stamp was a substantial violation.  Accordingly, the two-prong test is satisfied and the inquiring judge is therefore obligated to take “appropriate action” (see Opinion 10-85).

 

          We also advised, however, that where the misuse of the notary stamp was a matter of convenience and not part of a pattern of misconduct, the judge was not required to report the attorney to the grievance committee (id.).  Here, the court attorney seemingly misused the notary stamp on one occasion in support of an effort to assume financial liability for a specific purchase the court attorney wanted his/her then-partner to make.  Nothing in the inquiry suggests that the document needed to be notarized or was likely to create a false impression of being notarized by an independent third party.  In our view, this misconduct is not so egregious on its face as to implicate the attorney’s honesty, trustworthiness, or fitness as a lawyer.  Unless the judge concludes otherwise, the judge may choose to take other, less severe action, such as counseling, reprimanding, admonishing, or sanctioning the court attorney (see Opinion 21-78). 

 

Draft Settlement Agreement

 

          As described by the judge, the e-mail further alleged that the court attorney “shared confidential court information with” the ex-partner and attached certain documents purporting to demonstrate this claim.  The court attorney admitted to the judge that he/she had shared “a draft settlement agreement on behalf of a client” with the court attorney’s then-romantic partner during the court attorney’s former employment. 

 

          Here, too, although the inquiring judge had no obligation to investigate the accusations, the court attorney’s admission similarly establishes the “substantial likelihood” prong.  It appears that the inquiring judge has already concluded that this is a “substantial violation” of the attorney’s ethical obligation to maintain client confidentiality; if so, the judge must take “appropriate action.” 

 

          Again, as described by the inquiring judge, this apparent breach of confidentiality appears to be a one-time incident arising during the court attorney’s former practice of law.  In our view, this misconduct is not so egregious on its face as to implicate the attorney’s honesty, trustworthiness, or fitness as a lawyer.  Unless the judge concludes otherwise, the judge may choose to take other, less severe action, such as counseling, reprimanding, admonishing, or sanctioning the court attorney (see Opinion 21-78). 

 

Personal and Private Misconduct

 

          The e-mail also made allegations of a more personal and private nature, focusing on the court attorney’s alleged infidelities and other sexual improprieties, including the court attorney’s decision to send an unsolicited sexually explicit video shortly after they met and before they were an established couple.  The judge did not discuss these allegations with the court attorney. 

 

          As the inquiring judge has absolutely no first-hand knowledge of this conduct, we conclude it is entirely within the judge’s discretion to determine whether he/she has received information indicating a “substantial likelihood” that the court attorney has committed a “substantial violation” of the Rules of Professional Conduct (see Opinion 15-138/15-144/15-166).  We note that Opinion 04-116 does not govern here, as it involved allegations of sexual impropriety against an attorney by a former client.[2]  Here, although the allegations may be sordid, it is not entirely clear from the description whether any of them, if true, would necessarily violate the Rules of Professional Conduct.  Moreover, the substantial likelihood prong is not necessarily satisfied on the facts presented, merely because the court attorney’s former romantic partner attached purported audio recordings (cf. Opinion 22-148 [advising that screen shots of alleged impermissible campaign materials e-mailed by co-judge’s election opponent did not satisfy “substantial likelihood” requirement]). 

 

          The inquiring judge has no obligation to investigate the allegations.  Instead, the judge must exercise his/her discretion in determining whether he/she has received information indicating “a substantial likelihood” these allegations are true and, if so, whether they constitute a “substantial violation” of the court attorney’s ethical obligations.  Should the judge conclude the two-prong test is met, the judge must take whatever action he/she deems in his/her discretion to be appropriate.

 

Conclusion

 

          In summary, a judge has no ethical duty to investigate allegations from the court attorney’s former romantic partner about the court attorney’s conduct before working for the judge.  Where the court attorney has admitted certain allegations which, in the judge’s view, constitute substantial professional misconduct, the judge must take appropriate action; it is for the judge’s sole discretion to determine what action is appropriate under the circumstances.  With respect to other allegations of a more personal and private nature, the judge need not take any action unless the judge concludes he/she has received information indicating a substantial likelihood that the attorney has committed a substantial violation of the Rules of Professional Conduct.


            On these facts, the judge has no ethical obligation to report the court attorney to the grievance committee.  We have not previously required a judge to terminate a court employee’s employment in the exercise of the judge’s disciplinary obligations under Section 100.3(D)(2), and we decline to do so here.

[1] The court attorney signed the document only once, and thus does not appear to have separately “notarized” his/her own signature.

[2] To the extent that Opinion 04-116 says a judge must report an ex-client’s allegations against their former attorney “unless the judge concludes that the letter is without credibility,” that standard has been abrogated over the past twenty years (see e.g. Opinion 16-132 [judge without personal knowledge of alleged sexual misconduct by attorney “has wide discretion to make the threshold determination whether there is a substantial likelihood of a substantial violation” and need not investigate the allegations]).