June 11, 2015
Digest: Where a judge has received a secondhand report of a casually overheard and possibly privileged conversation and has jumped to the unsupported conclusion that the attorney was, despite his/her actual overheard words, somehow encouraging his/her client to engage in intimidation, threats, or coercion, the judge (1) need not take any disciplinary action with respect to the attorney but (2) must disqualify him/herself from the case to avoid any possible appearance of impropriety. Under these circumstances, the judge should not reveal the reason for his/her disqualification.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(D)(2); 100.3(E)(1)(a)(i); pt 1200, Rule 4.2(b); Opinions 15-119; 13-71; 10-85.
A court clerk advised the inquiring judge that he/she overheard a conversation between a defendant and his/her counsel near the courthouse. According to the court clerk, the attorney told the defendant to speak directly with an individual who obtained a protective order against the defendant “and have her go over her statement, that she shouldn’t change it but if there’s anything that might help [your] case...” The inquiring judge’s protective order does not prohibit the defendant from speaking with the victim, but instead directs the defendant to “Refrain from assault, stalking, harassment, ... forcible touching, intimidation, threats, identity theft, grand larceny, coercion, or any criminal offense against ‘victim.’” Although the judge has no personal knowledge of the conversation, the judge asks whether he/she must disclose it to other parties and attorneys on the case or take some disciplinary action against the attorney.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must respect and comply with the law (see id.). 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” (22 NYCRR 100.3[D]).
A judge has no duty to investigate whether allegations of misconduct are true (see e.g. Opinion 10-85). Moreover, the initial question of whether the information a judge already possesses meets the “substantial likelihood” threshold is typically within the inquiring judge’s discretion (see id.). This is because the judge “is in the best position to evaluate and assess all relevant, known circumstances” (id.). Despite this general rule, in Opinion 15-119, the Committee advised:
there have been instances where the facts described in an inquiry to this Committee make clear that the inquiring judge lacks sufficient information to meet the initial “substantial likelihood” threshold (see e.g. Opinions 14-50 [judge “does not have information indicating a substantial likelihood of any wrongdoing by the named individuals”]; 10-86 [judge who believes charges in criminal complaint against lawyer would, if proven, constitute a substantial violation is not required to take any disciplinary action unless he/she also concludes there is a substantial likelihood that charges are true]; 10-64 [judge “does not know the substance of the alleged false statements or that the attorney’s allegation is true”]). Similarly, where an inquiring judge became aware that another judge presided in a case involving his/her own personal attorney, the Committee noted that “it is not necessarily improper for the judge to preside over matters in which the attorney appears, because the parties and their attorneys may remit the disqualification pursuant to Section 100.3(F)” (Opinion 13-71). The Committee therefore advised that, if the inquiring judge does not know whether there was remittal of disqualification, the judge “need not take any further action, as you do not have information that raises a substantial likelihood that any misconduct occurred” (id.).
Here, too, the inquiring judge’s secondhand information, even if accurate, does not suggest a “substantial likelihood” that any misconduct occurred (see generally Opinions 15-119; 13-71). Critically, this judge has provided the exact language of the protective order to the Committee, and the order does not prohibit the attorney’s client from speaking with the individual who obtained the order. Nor does the overheard conversation suggest that the attorney was attempting to influence the victim’s testimony or conduct; to the contrary, the attorney expressly advised that “[the victim] shouldn’t change” her statement. Absent a legal or ethical prohibition on contact between the defendant and the victim,1 the Committee can see no reason why the attorney’s suggestion that his/her client contact the victim would violate the Rules of Professional Conduct. Accordingly, the Committee concludes this judge’s disciplinary responsibilities are not triggered, and the judge need not report the attorney.
Nonetheless, it appears from the inquiry that this judge has somehow leaped to the conclusion -- based solely on the court clerk’s report of a casually overheard and possibly privileged conversation -- that the attorney must necessarily have been encouraging his/her client to engage in “intimidation, threats, [or] coercion.” As this conclusion appears to contradict the actual words the clerk overheard and reported to the judge, it creates, at the very least, an appearance of predisposition or bias against the attorney and/or the defendant with respect to the charges currently before the judge. Accordingly, to avoid any possible appearance of impropriety, the judge should disqualify him/herself from the case (see 22 NYCRR 100.2; 100.3[E][a][i]). Under the circumstances presented, the judge should not disclose the reason for his/her disqualification.
1 Even if the victim is represented by counsel, the Rules of Professional Conduct permit “a lawyer [to] cause a client to communicate with a represented person,” subject to certain limitations (22 NYCRR 1200, Rule 4.2[b]).