April 21, 2005
NOTE: 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."
Digest: (1) Whether a judge who receives an affidavit from a litigant admitting that she is an alien and is in the U.S. illegally should notify the Immigration and Naturalization Service (“INS”) is a matter for the judge’s discretion. (2) It is up to the judge to determine whether the preparation and submission of the potentially incriminating affidavit by the litigant’s assigned attorney, and the attorney’s subsequent statement that the client “should be deported,” constitute substantial misconduct; only if the judge finds that they do must the judge refer the matter to a disciplinary authority. (3) Whether the judge should allow the action to proceed with the attorney still in the case is a legal question, not a question of judicial ethics; however, if the judge believes the attorney may have a conflict of interest that would require his/her removal, the judge may inquire and may take appropriate action if there is a conflict.
Rules: 22 NYCRR 100.2(A); 100.3(D)(2). Opinions 88-85 (Vol. III); 89-54 (Vol. III); 89-74 (Vol. IV); 90-74 (Vol. V); 91-105 (Vol. VIII); 01-09 (Vol. XIX); 03-110; 04-47; 04-116.
We are asked whether a judge (1) must report to the Immigration and Naturalization Service (“INS”) that a plaintiff in an uncontested divorce action has stated in an affidavit that she is an alien and in the U.S. illegally; and (2) must report the litigant’s attorney to a disciplinary authority because the attorney, whom the court had assigned to represent the indigent plaintiff, prepared and submitted the potentially incriminating affidavit and, when the judge’s law clerk inquired about the wording of the affidavit, responded “then she should be deported.” The attorney had submitted the affidavit on the basis of his belief that in a divorce action the court required the litigants to submit their social security numbers or explain why they have none. The judge also inquires (3) whether the judge should allow the divorce to proceed with the attorney representing the plaintiff.
There being no ethical rule or statute covering a judge’s duty to report unlawful conduct by a person who is not a lawyer or judge, it is a matter for the judge’s discretion whether to report the plaintiff to the INS. See, e.g., Joint Opinion 88-85/88-103 (Vol. III); Opinion 03-110.
As to alleged misconduct by lawyers, section 100.3(D)(2) of the Rules Governing Judicial Conduct provides: “A judge who receives information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Code of Professional Responsibility shall take appropriate action.” 22 NYCRR 100.3(D)(2). A substantial violation is one that implicates the attorney’s honesty, trustworthiness, or fitness as a lawyer. Opinion 89-54 (Vol. III); Opinion 89-74 (Vol. IV).
Whether there is a duty to take action in a particular case is generally a matter of discretion. This Committee “is not authorized to construe the Code of Professional Responsibility [or] to determine whether an attorney’s specific conduct is a breach of the Code. The Committee can only reiterate the general principle . . . that a judge who becomes aware of troublesome conduct by an attorney . . . must determine whether, in the judge’s opinion, such conduct violates professional ethics, and if so, whether the violation is substantial, in which case the judge should report the violation.” Opinion 04-116, quoting Opinion 90-74 (Vol. V).
While that is the general principle, the Committee has found that if an allegation against a lawyer sets forth a patently substantial breach of professional ethics, the judge should inform the appropriate authorities of the allegation, unless the judge finds it is without credibility. See, Opinion 04-116 [letter alleging that the writer’s matrimonial lawyer had sex with her and that she received harassing telephone calls and mail from him]; Opinion 04-47 [a judge should report to the grievance committee that a disbarred lawyer unlawfully engaged in real estate transactions without a license, so that the information is available if the offender applies for reinstatement to the bar]. The Committee believes that here the general principle applies, thus leaving the matter to the inquiring judge’s discretion.
Just as this Committee is not authorized to construe the Code of Professional Responsibility, the Committee is likewise not authorized to determine what constitutes a conflict of interest or other disability that requires removal of a lawyer from a case. Generally that is a legal question, not one of judicial ethics. In Opinion 91-105 (Vol. VII) the Committee, citing section 100.2(A) of the Rules, stated that if a judge who assigns a public defender believes there may be a conflict of interest created by the public defender’s candidacy for district attorney, “[t]here is no ethical objection” if the judge inquires about any possible conflict and then takes appropriate action regarding an assignment if there is a conflict. However, the Committee “does not pass on the issue of whether the judge has a legal duty to make such an inquiry [emphasis added].” See also, Opinion 01-09 (Vol. XIX) [whether a judge who knows that a lawyer faces ethical problems should approve the lawyer’s application to be placed on a law guardian list “does not in itself raise a question of judicial ethics.”] However, if the judge has information indicating a substantial likelihood of professional misconduct, the judge should take appropriate action.
Analogously, here the Committee does not decide whether the judge must terminate the attorney’s assignment in the case, but the judge may inquire as to any possible conflict of interest and take appropriate action if there is a conflict.