May 7, 2004
NOTE: (1) Please refer to Opinion 10-85 for updated guidance on a judge's disciplinary responsibilities under Section 100.3(D)(2). In connection with the present opinion, the Committee further noted that "the Committee has come to believe that its prior use of the phrase 'substantial violation' as a defined term or term of art may be confusing." (2) Please refer to Joint Opinion 08-183/08-202/09-112 and subsequent opinions for guidance on a judge's ethical obligations after filing a disciplinary complaint against an attorney. Disclosure of a pending disciplinary complaint is now generally prohibited, in light of the Committee's view that an "attorney’s right to confidentiality, both during the disciplinary proceeding and after it is resolved in his/her favor, is paramount" (Joint Opinion 08-183/08-202/09-112). Thus, the second point in the digest and the last two sentences of the present opinion are overruled.
Digest: (1) Under the circumstances presented, whether an attorney has violated the Code of Professional Responsibility, and whether the violations are so serious and substantial to require reporting them to the Attorneys’ Grievance Committee is a determination to be made by the judge. (2) If the judge reports the matter to the Attorney Grievance Committee he/she should disclose that fact to all parties, but is not required to recuse, if the judge concludes that he/she can be fair and impartial.
Rule: 22 NYCRR 100.3(D)(2);Opinion 98-65 (Vol. XVII).
A Family Court judge is presiding over a juvenile delinquency trial, and the respondent is represented by a member of a law firm. The prosecution has rested and the defense case is in progress. A different partner of the same firm sends a fax to the judge containing a table of contents for a book he/she is writing on domestic violence, approved for publication by a bar association, asking if the judge would like to write a chapter.
The judge believes that by extending this invitation the law partner may have substantially violated one or more disciplinary rules of the Code of Professional Responsibility, and thus seeks the Committee’s advice as to what action the judge should take under section 100.3(D)(2) of the Rules Governing Judicial Conduct. 22 NYCRR 100.3(D)(2).
As stated by the judge:
Specifically my request for an opinion covers three points: (a) am I correct in believing [ ]’s actions violate one or more disciplinary rules, (b) if so, am I required to refer this to the Grievance Committee for the [ ] Department, and if so, (c) may I avoid recusing myself by allowing the Grievance Committee to proceed on the complaint rather than becoming a named plaintiff?
Whether the lawyer violated the Code of Professional Responsibility, and, if so, whether the violations were substantial are matters for the exercise of judgment and discretion by the inquirer. The Committee has said in the past, it is the judge’s responsibility to determine whether there is a substantial likelihood that an attorney committed a substantial violation of the Code of Professional Responsibility. Opinion 98-65 (Vol. XVII). We note that the judge cites and discusses three provisions of the Code and has apparently concluded that the attorney has violated each. However, this Committee is in no position either to confirm or reject such conclusions because they involve factual matters of nuance and interpretation and an assessment of intentions. These are all matters, at this point, appropriately left within the province of the inquiring judge who is in a superior position to make such decisions. See, Opinion 98-65 (Vol. XVIII).
If the judge further concludes that the violations are substantial, then the appropriate action is to report the matter to the Attorneys’Grievance Committee. In that event, the judge should disclose the facts to all parties. If upon disclosure, a party requests recusal, the judge may continue with the case, provided the judge believes in good conscience that he/she can be fair and impartial.