Opinion 25-45

March 27, 2025

Digest:  A judge need not report an attorney-litigant to the grievance committee based on unsworn conclusory statements made by the attorney’s party opponents with no corroborating evidence.

Rules:   22 NYCRR 100.2; 100.2(A); 100.3(D)(2); Opinions 23-239; 22-64; 10-86; 10-85.

Opinion:

          At a recent hearing before the inquiring judge, certain unrepresented non-attorney defendants accused their party opponent, an attorney, of various acts of corporate malfeasance involving dishonesty, conflicts of interest, and/or breach of trust.  The accusations were unsworn and not supported by any corroborating evidence, but the accusers said they were considering criminal charges and had already filed a professional complaint.  The judge has no independent knowledge of the attorney’s alleged misconduct.  The judge asks if he/she must report the allegations to the attorney grievance committee or any other body.  If so, the judge further asks if it is necessary to advise the parties of the report and/or disqualify in the matter.

          A judge must always avoid even the appearance of impropriety and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 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]).  

          We have advised that a judge need not investigate alleged misconduct and may discharge his/her disciplinary responsibilities, if any, “based on those facts already known to the judge without further inquiry” (Opinion 22-64; see also Opinion 23-239). Moreover, whether there is a “substantial likelihood” of a “substantial violation” is usually left to the discretion of the judge, who is in the best position to evaluate all the relevant, known circumstances (see Opinion 10-85).  If the judge concludes either prong is not met, no action is required.  

          In Opinion 10-86, a judge reviewed a criminal complaint charging a lawyer with grand larceny in the third degree.  The judge had no personal knowledge about the alleged conduct, and was “unaware of any corroborating evidence.”  We advised that a judge who believes that the charges in a criminal complaint against a lawyer would, if proved, constitute a substantial violation of the Rules of Professional Conduct “is not required to take any action unless he/she concludes there is a substantial likelihood that the charges are true” (id.).   

          Here, the inquiring judge has no personal knowledge of any of the alleged misconduct by the attorney-plaintiff, but only unsupported, unsworn accusations.  Accordingly, on the facts presented, “the ‘substantial likelihood’ prong is not clearly met” and the judge is not ethically required to take any disciplinary action with respect to the attorney-plaintiff (Opinion 22-64).  Provided the judge believes he/she can remain fair and impartial, there is no obligation to disqualify.  

          While the judge’s remaining questions are arguably moot, for completeness we nonetheless reiterate the following guidance from Opinion 22-64 (citations and paragraph break omitted):

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. 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. 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.”  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.