May 21, 2013
This responds to your inquiry (12-180) asking if you are obligated to report a litigant and/or the litigant’s attorney where the litigant asserted in an affidavit that he/she lied to the court and that his/her counsel advised him/her to do so, and in subsequent papers denied perjuring him/herself or intentionally lying to the court.
A judge who receives information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Professional Conduct Rules must take appropriate action (22 NYCRR 100.3[D]). The Committee has advised that a judge who learns of an attorney’s possible misconduct must him/herself determine based on the information received whether there is a substantial likelihood that the attorney engaged in the alleged misconduct, and if so, whether that conduct constitutes a substantial violation of the Rules Governing Judicial Conduct (see Opinion 10-122). However, a judge is not required to investigate whether an attorney has engaged in misconduct (see Opinion 10-36).
If you conclude you have substantial knowledge that the attorney who represented the litigant in your court did engage in misconduct, you must determine the appropriate action to take. In Opinion 10-85, the Committee advised that a judge must report an attorney’s conduct to a disciplinary authority only if the alleged misconduct rises to such an egregious level that it implicates the attorney’s honesty, trustworthiness or fitness as a lawyer (see e.g. Opinion 07-129 [judge should report attorney to appropriate attorney disciplinary committee where attorney admitted under oath that he/she committed perjury]). However, if the alleged misconduct is not so egregious as to implicate the lawyer’s honesty, trustworthiness or fitness to practice law, the judge need not necessarily report the lawyer to the appropriate disciplinary authority, but may take less severe appropriate measures (see Opinion 10-85).
While the Rules Governing Judicial Conduct address a judge’s obligations with respect to misconduct by an attorney or a judge, there is no ethical requirement that a judge report criminal activity or other misconduct by litigants or witnesses disclosed in cases before the judge (see Opinion 08-155).
I have enclosed Opinions 10-122, 10-36, 08-155 and 07-129 for your convenience.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)