May 23, 2007
Note: This Opinion has been overruled or modified. Please refer to Joint Opinion 08-183/08-202/02-112 before relying on this Opinion.
This responds to your inquiry (07-57) about whether you are obliged to report “questionable behavior” of an attorney appearing in a case over which you presided.
The Rules Governing Judicial Conduct state 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). While this determination lies within your discretion, should you conclude there is a substantial likelihood that the attorney has substantially violated the Code, you must take “appropriate action.” Opinions 06-100; 05-37. That action may include referring the matter to the appropriate Attorney Grievance Committee.
If you choose to file such a complaint, you should exercise recusal in all matters where the attorney appears before you, while the complaint is pending before the Grievance Committee. Opinions 06-100; 05-37. While generally it is not necessary for a judge to state the reasons for a recusal Opinion 00-97, the absence of any such disclosure requirement is particularly important where, as here, the attorney has the right to expect that the confidentiality of disciplinary proceedings will be respected by the court.