October 4, 2006
This is in response to your inquiry (06-99) in which you seek the Committee’s advice concerning an attorney who was a defendant in an attorney malpractice action in your courtroom. You stated that the jury returned a verdict against that attorney, which included punitive damages. You inquire whether you are required to refer the attorney to the disciplinary committee.
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. We have previously advised that a substantial violation is one that implicates the attorney’s honesty, trustworthiness, or fitness as a lawyer. Opinions 89-74 (Vol. IV); 89-54 (Vol. III).
Whether or not to report the attorney at issue is thus 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 in all matters where the attorney appears before you while the matter is pending before the Grievance Committee.