The New York Advisory Committee on Judicial Ethics has issued an opinion addressing the ethical obligations of a judge who suspects an attorney of engaging in professional misconduct. Opinion 25-79, published on the New York Courts website, delves into the scenario where a judge presiding over a civil matter uncovers evidence suggesting that an attorney has committed a substantial violation of the Rules of Professional Conduct.
The opinion centers on a specific inquiry from a judge who, during a civil proceeding, heard sworn testimony indicating that an attorney may have engaged in dishonesty, fraud, deceit, or misrepresentation related to the sale of a vehicle. According to the testimony, the attorney allegedly failed to discharge a lien on the vehicle as promised during the sale and subsequently provided false assurances and excuses when the purchaser discovered the truth. The judge, having reviewed the evidence, concluded that there was a substantial likelihood that the attorney had engaged in significant misconduct.
The judge raised two primary questions: first, whether they were obligated to report the matter to the District Attorney’s office for investigation or to report the attorney to a grievance committee; and second, whether their ethical obligations were affected by a prior unsubstantiated complaint filed against them by the same attorney.
The Committee addressed the second question first, clarifying that the prior unsubstantiated complaint should not influence the judge’s obligations under Section 100.3(D)(2) of the Rules Governing Judicial Conduct. Citing previous opinions, the Committee stated that disqualification is not required simply because a party has criticized the judge or filed a complaint, as long as the judge can remain fair and impartial. Since the attorney’s complaint was dismissed without any formal charges or disciplinary action, the Committee concluded that the judge’s disciplinary obligations regarding the attorney were not affected.
Turning to the primary question regarding disciplinary obligations, the Committee reiterated the two-prong test established in previous opinions. A judge must take appropriate action if they conclude that there is a “substantial likelihood” that an attorney has committed professional misconduct and that such misconduct constitutes a “substantial violation” of the Rules of Professional Conduct. The Committee acknowledged that the determination of whether this two-prong test is met typically rests within the discretion of the judge.
In this particular case, the inquiring judge had already determined that both prongs of the test were satisfied. Therefore, the Committee advised that the judge must take “appropriate action.” While judges generally have discretion in determining what constitutes appropriate action, the Committee emphasized that reporting to the attorney grievance committee is mandatory when the alleged misconduct seriously calls into question the attorney’s honesty, trustworthiness, or fitness as a lawyer.
The Committee cited examples from previous opinions where reporting was required, such as cases involving the preparation of a deed containing false information, misappropriation of client funds, or deliberate deception of a client. In the present scenario, the Committee found that the attorney’s alleged conduct regarding the vehicle sale and lien, if true, would seriously implicate the attorney’s honesty and integrity.
The Committee clarified that reporting to the attorney grievance committee is mandatory unless the judge knows that the specific conduct has already been reported. However, reporting may be delayed until the conclusion of the proceedings. The opinion also reminds that after reporting an attorney to the grievance committee, the judge must disqualify themselves from all cases involving that attorney during the pendency of the disciplinary complaint and for two years after its resolution, unless certain conditions are met.
Finally, the Committee stated that it is entirely within the judge’s discretion whether to refer the attorney’s allegedly illegal conduct to the District Attorney.
