January 28, 2016
Digest: A judge who has personal knowledge that an estate’s former attorney has failed to turn over estate assets in response to a court order and missed several court appearances must determine, based on the facts and circumstances known to the judge, whether there is a substantial likelihood that the attorney’s actions constitute a substantial violation of the Rules of Professional Conduct and, if so, must take appropriate action. The judge may, in his/her discretion, wait until the proceeding ends to take any such action.
Rules: Judiciary Law § 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.3(D)(2); 101.1; Opinions 14-131; 13-127; 13-77; 11-48; 10-122; 10-85; 09-142; 08-198; 07-129; 93-71.
A judge who is presiding over an estate proceeding asks if he/she must report the estate’s former attorney to the grievance committee. The attorney has failed to turn over substantial estate assets pursuant to a court order more than ten months ago. The attorney also failed to appear on the return dates for certain motions for contempt of the court order, although the judge notes these motions were ultimately withdrawn as procedurally defective. On these facts, the judge specifically asks if enough evidence exists to decide that a substantial violation of the Rules of Professional Conduct has occurred and, if so, whether the judge may wait until after the motion has been heard before acting.
A judge must always avoid impropriety and its appearance (see NYCRR 100.2), and 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 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 has advised that the judge who learns of an attorney’s possible misconduct is generally in the best position to decide if there is a “substantial likelihood” the attorney has “substantially violat[ed]” the Rules of Professional Conduct based on all the circumstances known to the judge (see Opinions 14-131; 08-198; 07-129). Because “appropriate action” depends on the facts and circumstances of each case, it is best left to the judge’s discretion to decide the appropriate action (see Opinion 10-85).
However, if the judge further concludes the misconduct seriously calls into question the attorney’s honesty, trustworthiness or fitness as a lawyer, then the only appropriate action is to report the attorney to the appropriate disciplinary authority (see Opinions 14-131; 11-48; 07-129). There have been instances where conduct described in an inquiry to the Committee, if true, demonstrated a substantial likelihood of a substantial violation that clearly called into question an attorney’s honesty, trustworthiness or fitness as a lawyer and, at the very least, warranted an investigation by the attorney grievance committee (see e.g. Opinions 13-77; 07-129).
Under these facts, the “substantial likelihood” prong appears satisfied since the judge has personal knowledge the attorney failed to comply with a court order over an extended period, and has missed several court appearances on motions for contempt of the court order.1 The alleged misconduct may also be a “substantial violation” of the Rules of Professional Conduct, to the extent it involves unprofessional conduct in defiance of court directives (see e.g. Opinion 09-142). If this judge decides both prongs are met, he/she must take “appropriate action.”
However, the “appropriate action” for the judge to take depends on all the surrounding circumstances known to the judge. Thus, that action may include warning the lawyer, sanctioning the lawyer, informing the lawyer’s firm, and/or reporting the lawyer (see Opinion 10-85). Although the judge has no duty to investigate the alleged misconduct (see Opinions 14-131; 13-127), the judge may also consider the information elicited at the contempt hearing when deciding whether the attorney’s actions involved blatant disregard of the court’s order, as opposed to mere inadvertence or ignorance of a rule; whether the lawyer shows genuine remorse, contrition; and any other relevant conduct or factor known to the judge (see Opinion 10-122). Again, reporting is mandated only if the judge concludes, under the circumstances known to the judge, that the attorney’s conduct seriously calls into question the attorney’s honesty, trustworthiness or fitness as a lawyer (see Opinions 14-131; 13-127; 13-77; 10-122).
Finally, the Committee concludes the inquiring judge may, in his/her discretion, wait until the proceeding ends to take whatever action he/she determines is appropriate under the circumstances.2
1 Of course, the Committee cannot comment on the legal significance of the attorney’s failure to appear on motions that were later withdrawn as “procedurally defective” (see generally Judiciary Law § 212[l]; 22 NYCRR 101.1).
2 To the extent that Opinion 93-71 is inconsistent with this result, it is hereby amended. A judge who observes apparent misconduct by an attorney in the course of presiding over a case may wish to wait until conclusion of the case before taking action for a number of reasons including, but not limited to, obtaining a more complete picture of the attorney’s conduct and/or minimizing unnecessary disruptions and delays in the case.