Opinion 25-79
May 15, 2025
Digest: A judge who determines that there is a substantial likelihood that an attorney committed a substantial violation of the Rules of Professional Conduct by engaging in serious dishonesty, fraud, deceit or misrepresentation in connection with the sale of a vehicle, must report the conduct to the attorney grievance committee. Reporting may await the conclusion of the proceedings.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(B)(2); 100.3(D)(2); 100.3(E)(1); Opinions 24-143; 24-79; 24-35; 22-123; 20-213; 19-107; 19-84; 18-58; 17-90; 16-129; 15-180; 14-189; 13-77; 05-105/05-108/05-109.
Opinion:
While presiding in a civil matter, the inquiring judge heard sworn testimony concerning an attorney’s apparent misconduct. As described by the judge, the attorney allegedly undertook to discharge the lien on his/her vehicle as a condition of sale, and falsely claimed to have done so. When the purchaser learned the truth after conveying the vehicle to another, the attorney offered a series of excuses and assurances that he/she would discharge the lien, but ultimately never paid it. On reviewing this evidence and other information received, the judge has concluded there is a substantial likelihood that the attorney engaged in substantial dishonesty, fraud, deceit or misrepresentation in connection with the transaction and its aftermath. The judge asks if he/she must refer the matter to the District Attorney’s office for investigation and/or report the attorney to a grievance committee. The judge also asks if his/her ethical obligations are affected by the fact that, less than two years ago, an administrative judge advised that the attorney had filed an unsubstantiated complaint against the inquiring judge.[1]
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must “not be swayed by partisan interests, public clamor or fear of criticism” (22 NYCRR 100.3[B][2]). If a judge receives information indicating a “substantial likelihood” that an attorney has committed a “substantial violation” of Rules of Professional Conduct, the judge must take “appropriate action” (22 NYCRR 100.3[D][2]). However, a judge must disqualify him/herself in a proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).
Effect of Attorney’s Prior Unsubstantiated Complaint
We start with the judge’s second question, as the judge asks, in effect, whether a complaint made by the subject attorney to the Unified Court System against the inquiring judge, which was ultimately determined to be unsubstantiated and dismissed without consequence to the judge, should affect the judge’s obligations under Section 100.3(D)(2).
We have advised that disqualification is not required “merely because a party has publicly criticized the judge, no matter how harshly, provided the judge can be fair and impartial” (Opinion 14-189). Even the filing of a complaint with the Commission on Judicial Conduct, without more, does not by itself require the judge’s disqualification, provided the judge concludes he/she can remain fair and impartial (see e.g. Opinion 16-129). The same guidance applies here, given that the attorney’s complaint did not result in formal charges or discipline, but was instead dismissed as unsubstantiated.
Accordingly, provided the judge can be fair and impartial, we conclude the inquiring judge’s disciplinary obligations with respect to the attorney are not affected by the attorney’s prior complaint against the judge.
Disciplinary Obligations
We have recognized that a judge’s disciplinary responsibilities under Section 100.3(D)(2) involve a two-prong test. If a judge concludes, based on information received, that either the “substantial likelihood” or the “substantial violation” prong is not satisfied, the judge need not take any action (see e.g. Opinion 24-143). Conversely, if a judge concludes both that there is a “substantial likelihood” that the attorney has committed professional misconduct, and that such misconduct, if proved, would also constitute a “substantial violation” of the Rules of Professional Conduct, then the judge must take “appropriate action” (see id.). The determination of whether this two-prong test has been met ordinarily rests within the discretion of the inquiring judge, who is presumptively “in the best position to evaluate and assess all relevant, known circumstances” (Opinion 18-58). The judge need not undertake any investigation of the alleged misconduct, but may instead discharge his/her disciplinary responsibilities based on facts already known to him/her without further inquiry (see e.g. Opinion 24-143).
Here, the inquiring judge has already determined that the two-prong test is met, so the judge must take “appropriate action” under the circumstances (see 22 NYCRR 100.3[D][2]; Opinion 19-107). While a judge ordinarily has discretion to determine what constitutes appropriate action, sometimes an inquiry describes alleged misconduct that, if true, seriously calls into question the attorney’s honesty, trustworthiness, or fitness as a lawyer (see Opinion 20-213). In such instances, we have required a judge to report the attorney to the appropriate grievance committee (id.).
For example, we have said reporting is required when the two-prong test is met and the alleged “substantial violation” involves preparation of a deed containing known, materially false information concerning the property (see Opinion 20-213) or misappropriation of client funds in an escrow account (see Opinion 24-35). We also required reporting where the two-prong test was met and the attorney’s alleged misconduct involved deliberate deception of an infant client’s guardian into signing an onerous financing agreement with the attorney’s sibling (see Opinion 24-79); falsely advising the client that a lawsuit was settled after it was discontinued and then paying a putative “settlement” out of the attorney’s own funds (see Opinion 13-77); or making a deliberate misrepresentation to a client resulting in a default judgment and then refusing to appear when the matter was restored to the calendar (see Opinion 22-123).
In our view, if the attorney’s conduct occurred as described regarding the vehicle sale and lien, it seriously implicates the attorney’s honesty, trustworthiness, and fitness as a lawyer. While the judge is, of course, in the best position to assess whether his/her observations and conclusions about the situation are accurate, the serious nature of the sworn factual allegations by the litigant, “are of a kind best sorted out by an independent agency with investigative capability” (Opinion 05-105/05-108/05-109). Accordingly, reporting to the attorney grievance committee is mandatory unless the judge knows this specific conduct has already been reported (see Opinions 15-180; 13-77). However, reporting may await the conclusion of the proceedings (see e.g. Opinions 22-123; 19-107).
As a reminder, after the judge reports the attorney to the grievance committee, the judge must disqualify in all cases involving that attorney during the pendency of the disciplinary complaint and for two years after its resolution (see e.g. Opinion 19-107). This disqualification is not subject to remittal unless the attorney grievance committee imposes public discipline, or the reported attorney waives confidentiality (id.).
It is left entirely to the judge’s discretion whether or not to refer the attorney’s allegedly illegal conduct to the District Attorney (cf. Opinions 19-84; 17-90).
[1] We understand the complaint had already been investigated, found unsubstantiated, and deemed closed by the time the judge learned about it.