October 5, 2006
Note: The Committee has subsequently advised that, to protect the reported attorney’s right to confidentiality, the judge may not reveal the reason for disqualification and, thus, remittal is not available (see Joint Opinion 08-183/08-202/09-112).
This is in response to your inquiry (06-100) in which you seek the Committee’s advice concerning an attorney whom you state made false allegations against you of unethical conduct in your private law practice.
Section 100.3(D)(2) of the Rules Governing Judicial Conduct states that “[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). The Committee has opined that, in general, the question of whether there is a substantial likelihood that a substantial violation of the Code has been committed is a determination to be made by the judge.
In your inquiry, you state that DR 8-102 of the Code of Professional Responsibility has been violated by the making of false allegations against you. The Committee, however, is not in a position to construe the Code or to make a determination that the conduct of the attorney in question breached the Code. It is, therefore, a matter that rests with your judgment. Should you conclude that there is a substantial likelihood of a substantial violation of the Code, you are obligated to take appropriate action, which may involve a referral to the appropriate Attorney Grievance Committee. The making of such a complaint rests in your discretion. We enclose a copy of Opinion 05-30, which discusses these matters in greater detail. Should you make such a complaint, you should exercise recusal, subject to remittal, in all matters where the attorney appears before you while the matter is pending before the Grievance Committee.