November 18, 2013
This responds to your inquiry (13-118) asking whether you are ethically obligated to further investigate allegations of impropriety by an attorney and whether you must report the alleged misconduct.
A judge must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge who receives information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Rules of Professional Conduct must take appropriate action (see 22 NYCRR 100.3[D]).
The Committee generally has advised that the judge involved must determine whether there is a "substantial likelihood" that an attorney committed a "substantial violation" of the Rules of Professional Conduct, because that judge is in the best position to evaluate and assess all the relevant, known circumstances (see Opinion 10-85 [Amended]). Except in the unusual circumstances when the alleged misconduct is so egregious that it seriously calls into question the attorney’s honesty, trustworthiness or fitness as a lawyer (see id.), determination of what action is appropriate is left to a judge’s discretion.
The Committee has consistently advised that a judge need not investigate an attorney’s alleged misconduct, even to determine how serious or minor the misconduct may be (see Opinion 13-127).
If after assessing the situation, you report the attorney to a disciplinary authority, you are disqualified from presiding in matters in which the attorney appears during the pendency of the disciplinary proceeding and for two years after the proceeding is concluded (see Opinion 10-122).
Enclosed, for your convenience, are Opinions 13-127; 10-85 (Amended); 10-122; and 07-82 which discuss these issues.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)