March 9, 2006
Digest: Where it is evident that an attorney has either altered a notarized document or knowingly submitted an altered document to the court, whether to report the attorney’s apparent misconduct to the appropriate disciplinary committee is within the judge’s discretion.
Rules: 22 NYCRR 100.3(D)(2) Opinions 04-74; 02-85; 98-95 (Vol. XVII); 98-65 (Vol. XVII); 97-84 (Vol. XVI).
A judge asks about his/her obligation, if any, to report to the appropriate disciplinary committee an attorney who either altered a notarized document, or knowingly submitted the altered document to the court.
This Committee previously addressed an inquiry with similar facts in Opinion 02-85. There, the judge discovered that an attorney added, to a signed stipulation, language which had been specifically rejected by the judge.
The Committee responded to the inquiring judge:
Essentially, as the Committee has repeatedly stated, the determination of whether there is a substantial likelihood of a substantial violation rests with the judge. See, Opinions 98-95 (Vol. XVII); 98-65 (Vol. XVII); 97-84 (Vol. XVI). This does not mean that guidance can never be provided. If, for example, the judge concludes that the attorneys involved engaged in a deliberate deception, intended to perpetrate a fraud and deceive the parties and/or the court as to whether the additional language was now an order of the court, the appropriate action is clear: the matter should be reported to the attorney disciplinary committee. If, on the other hand, the judge concludes that the action taken by the attorneys, albeit improper, was not intended to deceive the parties and/or the court and does not disclose a lack of fitness to serve as attorneys, the course to be taken by the judge is discretionary. Whether this would involve reporting it to the disciplinary committee, or a judicial reprimand, or possible sanctions, if available, is for the judge to determine. The Committee, based on what is before it, reaches no conclusion in this regard, other than to articulate the guidelines stated.
The Rules Governing Judicial Conduct require 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). As the Committee has repeatedly stated, as a general rule, the judge with knowledge of the specific situation must determine whether this two-pronged threshold has been met. If met, the judge would be mandated to take affirmative, appropriate action. Opinions 04-74; 02-85; 98-95 (Vol. XVII); 98-65 (Vol. XVII); 97-84 (Vol. XVI). Here, too, the Committee concludes that the inquiring judge should resolve the matter in accordance with the guidelines expressed in Opinion 02-85.