March 13, 2014
Digest: (1) A judge, having learned that an attorney on a case is under indictment, but having no personal knowledge of the underlying circumstances, is not required to report the attorney to the attorney disciplinary authority. (2) As the judge has concluded he/she can decide the case before him/her without reference to this information, the judge need not make any disclosure to other attorneys on the case.
Rules: Judiciary Law §§ 90(4); 212(2)(l); 22 NYCRR 100.2(A); 100.3(B)(6); 100.3(D); 100.3(D)(2); 101.1; Opinions 13-77; 10-86; 10-85; 08-23; 07-82; 98-144 (Vol. XVII); Joint Opinion 04-143/05-05.
The inquiring judge has learned, from an attorney who is presently appearing before the judge on a particular case that the attorney “is under indictment.” It appears from the inquiry that the judge has no personal knowledge of the circumstances underlying the criminal charges. The judge asks whether he/she must disclose this fact to the other attorneys on the case, and similarly whether the attorney has a duty to disclose this fact to his/her client.1
A judge must always 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]). In addition, a judge must not initiate, permit, or consider ex parte communications or consider other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding, except as expressly permitted by the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[B]).
The Committee generally has advised that the judge involved must determine whether there is a “substantial likelihood” that an attorney has 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). A judge need not take any action unless he/she determines that standard is met. Moreover, 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 to practice law, determination of what action is appropriate is also left entirely to a judge’s discretion (see id.).
In Opinion 10-86, the Committee considered an inquiry from a judge who, in the course of his/her judicial duties, reviewed criminal charges against a lawyer that would, if proved, constitute a substantial violation of the Rules of Professional Conduct (see Opinion 10-86). The judge had no personal knowledge of any wrongdoing, however, and was not required to undertake any investigation to determine if the allegations had merit (see id.; Opinions10-85; 07-82). Under the circumstances presented, the Committee advised that the judge “is not required to take any action unless he/she concludes there is a substantial likelihood that the charges are true” (id.).
Although Opinion 10-86, unlike the present inquiry, involved an attorney who had not yet been indicted, it bears emphasis that individuals under criminal investigation or indictment “are presumed innocent of such charges until proven guilty in a court of law” (Joint Opinion 04-143/05-05 [advising that pendency of a criminal investigation or indictment against a party leader does not preclude a judge from “testing the waters” with him/her]). In the Committee’s view, the mere knowledge that an attorney is under indictment -– even if the indictment is for charges that would require disbarment if the attorney were ultimately convicted (see, e.g., Judiciary Law § 90) –- does not, without more, require the judge to take any action in the discharge of his/her disciplinary obligations. Where, as here, a judge has no personal knowledge of the underlying facts, but knows about the indictment only because the indicted attorney chose to disclose it to him/her, the judge does not have substantial knowledge of a substantial violation by the attorney, and therefore need not take any action pursuant to Section 100.3(D).2
It appears that the attorney made his/her disclosure to the judge ex parte. The inquiring judge has not explained the specific circumstances under which the disclosure was made, and therefore the Committee cannot address them in any detail. However, the Committee has previously advised that, while disclosure of ex parte communications inadvertently received may generally be advisable, it is not an absolute requirement without regard to the content, context and circumstances of the particular communication (see Opinions 08-23; 98-144 [Vol. XVII]). Assuming that the indictment does not relate to the matter before the judge, and further assuming that the judge can decide the case without reference to the attorney’s ex parte communication, the Committee concludes that, under the circumstances presented, the judge is not ethically required to disclose the ex parte communication to other counsel appearing in the matter.
The Committee cannot comment on the attorney’s legal or ethical obligations, if any, to advise his/her client that he/she is under indictment (see Judiciary Law § 212(2)(l); 22 NYCRR 101.1).
1The inquiry does not reveal the nature of the crime for which the attorney has been indicted, or the nature of the case in which the attorney is appearing before the judge, or the circumstances under which the attorney made his/her disclosure to the judge. Accordingly, the Committee cannot address these issues.
2The Committee notes, moreover, that even when a judge has substantial knowledge of a substantial violation which seriously calls into question an attorney’s fitness to practice law, the ethically mandated reporting is to a disciplinary authority (see, e.g., Opinions 13-77; 10-85), not to the attorney’s adversaries on a case.