Digest:         Where a judge concludes that an attorney disregarded a court directive and engaged in a deliberate deception, intended to perpetrate a fraud and deceive the parties and/or the court, the judge must report the attorney to the appropriate grievance committee.

Rules:         22 NYCRR 100.2; 100.2(A); 100.3(D)(2); Opinions 22-122; 20-213; 15-157; 14-88; 09-142; 02-85.

Opinion:

The inquiring judge called a recess during a jury trial, partway through counsel�s direct examination of an expert witness, and instructed the witness �not to communicate with anyone about [their] testimony during the break.�� Upon returning to the courtroom, the judge learned that counsel �showed [the witness] a note during the break telling [them] how to answer the pivotal question that [counsel] was about to put forth.�� Counsel initially denied having done so, and attempted to conceal the note, but finally admitted it after the note was located and produced.� On these facts, the judge asks if it is mandatory to report the attorney to the appropriate grievance committee.

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 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]).

As the judge has direct, first-hand knowledge of the incident and has concluded the misconduct is a substantial violation, the initial two-prong test is clearly 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 Opinions 22-122; 14-88; 09-142).� 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 Opinions 22-122 [assistant district attorney admitted secretly altering the supporting materials for a wiretap order after the judge signed the order]; 20-213 [judge had personal knowledge that attorney knowingly assisted in effectuating a transfer of disputed real estate under false pretenses]; 14-88 [attorney appearing pro se testified under oath that the attorney used a fictitious bank account to shield the attorney�s law firm income from court-ordered child support payments]).

Here, notwithstanding the court�s directive that the witness not communicate with anyone about their testimony during the recess, the attorney communicated with the witness during the break by showing the witness a note and advising them how to answer a key question that was coming up.� The attorney�s action was in clear violation of a court directive and, as such, constituted misconduct (compare Opinion 09-142 [attorney �repeatedly acted in an extremely unprofessional manner in defiance of court directives�]) with Opinion 15-157 [�Absent a court directive or ethical rule requiring the attorneys to refrain from speaking to a non-party witness during a recess in the midst of a hearing,� attorney�s act in speaking to witness during break about subpoenaed materials �[did] not necessarily constitute attorney misconduct�]).

The attorney�s misconduct was further exacerbated when the attorney denied communicating with the witness and attempted to conceal the note.� Again, only after being confronted with the note did the attorney admit to communicating with the witness during the recess.

Where a judge concludes that an attorney �engaged in a deliberate deception intended to perpetrate a fraud and deceive the parties and/or the court, � the appropriate action is clear: the matter should be reported to the attorney disciplinary committee� (Opinion 02-85; see also Opinion 09-142).� The attorney�s admitted misconduct at issue here raises serious concerns about the attorney�s honesty and trustworthiness.� Accordingly, we conclude that the judge must report the attorney to the appropriate grievance committee.