Opinion 25-75

May 15, 2025

Digest: A judge who presided over a custody settlement and directed one side’s attorney to draft the final order has discretion to determine what, if any, action to take when the attorney fails to draft the order and instead (i) makes a motion on notice, with supporting affirmations, to re-open the proceedings and (ii) advises his/her client that the agreed-upon visitation need not take place in the interim.

Rules:   22 NYCRR 100.2; 100.2(A); 100.3(D)(2); Opinions 23-87; 23-36; 16-159; 15-157; 14-88; 11-48; 10-85; 09-142.

Opinion:

          The inquiring judge presided over the settlement of a custody case and directed one parent’s attorney to prepare a custody order effectuating the agreed-upon terms, which included granting the other parent therapeutic visitation with the children.  The attorney did not prepare the order, but instead filed a motion to re-open the matter so that the children’s views could be heard.  In a supporting affirmation, the attorney admits telling his/her client that the children “did not have to see” the other parent in the interim.  The judge asks if he/she must take action against the attorney “for telling [his/her] client to disobey my court order.”

          A judge must always avoid even the appearance of  impropriety and act in a manner that promotes 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 an attorney has committed a “substantial violation” of the Rules of Professional Conduct must take “appropriate action” (22 NYCRR 100.3[D][2]).  As described in Opinion 14-88 (citations omitted):

In general, the Committee has advised that a judge must determine whether in a particular case there is a “substantial likelihood” an attorney has committed a “substantial violation” of the Rules of Professional Conduct based on all the facts and circumstances known to the judge. A judge need not undertake any investigation of an attorney’s alleged misconduct. If a judge concludes there is a substantial likelihood that an attorney has committed a substantial violation of the Rules of Professional Conduct, the judge “must take appropriate action.” Because “appropriate action” depends on the circumstances of each case, it is ordinarily left to the judge’s discretion to determine the appropriate action.  However, if the judge concludes the misconduct seriously calls into question the attorney’s honesty, trustworthiness or fitness as a lawyer, then the only appropriate action is to report the attorney to the appropriate disciplinary authority.

          Where the two-prong test is clearly met, we have said a judge must report an attorney who disregarded a court directive as part of “a deliberate deception intended to perpetrate a fraud and deceive the parties and/or the court” (Opinion 23-36).  Similarly, we advised that a judge must report an attorney who “deliberately sought to deceive the court and acted extremely unprofessionally in defiance of court directives” (Opinion 09-142). 

          By contrast, where a support magistrate received information indicating a substantial likelihood that an attorney failed to pay court-ordered child support, we advised that the support magistrate “must determine whether the attorney’s conduct, under the specific circumstances known to the support magistrate, constitutes a substantial violation of the Rules of Professional Conduct” (Opinion 11-48).  We emphasized that this determination remains in the support magistrate’s discretion “even if [he/she] finds that an attorney/respondent in child support proceedings is in ‘willful’ violation of a court order or determines that Family Court Act §458-b is applicable to the respondent’s conduct” (id.).  We thus left it to the inquirer’s discretion whether or not the two-prong test was met, and, if so, what action would be appropriate under the circumstances (id.).

          Turning now to the facts of the present inquiry, we conclude the “substantial likelihood” prong is clearly satisfied, as the judge has direct personal knowledge of the alleged misconduct. 

          However, we cannot determine, based on the information provided in the inquiry, whether the attorney’s conduct should be considered a “substantial violation” of the Rules of Professional Conduct.  We see no clear indication of an intent by the attorney to deceive the court or anyone else; “indeed, the attorney seems to have been forthright about the request [to re-open the matter] and the reasons for it” (Opinion 23-87).  In such circumstances, the “judge is in the best position to evaluate and assess all relevant, known circumstances” and determine whether this prong is met and, if so, what action is appropriate (Opinion 10-85; see also Opinions 23-87; 16-159; 11-48).  We note, for example, that if the judge determines there was no clear or enforceable order in place, no action may be necessary (see Opinion 15-157 [referee “need not take any action” on learning that an attorney briefly spoke to a non-party witness during a recess, “[a]bsent a court directive or ethics rule” prohibiting such conduct]).

          Accordingly, we conclude the inquiring judge has discretion to determine what, if any, action to take concerning the circumstances described.