May 26, 2011
This responds to your inquiry (10-204) asking what your reporting obligations are in light of an attorneys admission that he/she anonymously prepared papers, on behalf of an unrepresented litigant, in opposition to an application pending before you.1
As a court attorney referee, you are subject to the Rules Governing Judicial Conduct (see 22 NYCRR 100.6[A]). Therefore, if you have information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Rules of Professional Conduct (see 22 NYCRR Part 1200), you must take appropriate action (see 22 NYCRR 100.3[D]).
The Committee has generally and consistently advised that the judge is in the best position to determine whether there is a substantial likelihood that an attorney has committed a substantial violation of the Rules of Professional Conduct. Accordingly, if you determine that this standard is met, you must take appropriate action. However, reporting the attorney is not mandatory unless you determine that the violation rises to a level that seriously calls into question the attorney's honesty, trustworthiness, or fitness as a lawyer (see Opinion 10-85 [noting that other appropriate action may include, but is not limited to, "counseling and/or warning a lawyer, reporting a lawyer to his/her employer, and sanctioning a lawyer").
Enclosed, for your convenience, are Opinions 10-85, 08-08 and 07-129 which address this issue.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)
1 The practice of anonymously preparing papers for a litigant who is formally
appearing pro se is often referred to as "ghostwriting."