Opinion: 98-95
September 10, 1998
Digest:    Whether there is a "substantial likelihood" that a lawyer or judge has committed a "substantial violation" of an ethical rule so as to require a judge who has received information of such a violation to report it to an appropriate disciplinary body, is a matter to be determined by the judge.

Rule:    22 NYCRR 100.3(D)(1); 100.3(D)(2)
            Opinions 97-84; 93-71 (Vol. XI);
            93-14 (Vol. XI); 92-42 (Vol. IX);
            91-114 (Vol. VIII); 90-74 (Vol. V).


            A full-time judge, who was presiding over a felony trial, has made inquiry with respect to possible unethical conduct of an attorney. The defense attorney in question is also a part-time judge, who is prohibited from appearing before another part-time lawyer-judge of another town or village court in the same county. 22 NYCRR 100.6(B)(2). The inquiring judge learned that this lawyer-judge had asked another attorney to file a notice of appearance for a certain third person (a possible prosecution witness in the trial before the inquiring judge) in connection with a matter which was then pending in the justice court of another locality. The lawyer-judge apparently anticipated that the charges against this third person would be waived to a grand jury. As a result, the case would at some point be transferred out of the justice court, and presumably there would be a formal substitution of counsel. Concerned with what might be interpreted as an attempt to avoid the prohibition against a part-time lawyer-judge's practice of law before another part-time lawyer-judge of a different town or village located in the same county, the inquiring judge asks what he/she "must [do] in order to avoid violating the Code of Judicial Ethics . . .".

            Pursuant to section 100.3(D)(1), of the Rules Governing Judicial Conduct, a judge must take "appropriate action" upon the receipt of information indicating a "substantial likelihood" that another judge has committed a "substantial violation of the Rules Governing Judicial Conduct. Similarly, pursuant to section 100.3(D)(2) of the Rules, a judge must take "appropriate action" upon the receipt of information indicating a "substantial likelihood" that an attorney has committed a "substantial" ethical violation. The inquiring judge asks as to the meaning of the words "appropriate action."

            In that regard, the Committee previously has stated that, if a judge concludes that there is a substantial likelihood that a substantial ethical violation has occurred, the appropriate response is to report the suspected misconduct to the appropriate disciplinary body with jurisdiction over the matter. See Opinions 97-84; 93-71 (Vol. XI); 93-14 (Vol. XI); 92-42 (Vol. IX); 91-114 (Vol. VIII); 90-74 (Vol. V). But, whether the suspected violation is "substantial", is, in our view, a matter which is left for determination by the judge. Thus, it is not within the purview of this Committee to instruct the inquiring judge as to whether he/she is ethically obligated to report the lawyer-judge whose conduct is under consideration, or to report the lawyer who appeared in justice court on behalf of this lawyer-judge. The Committee notes, however, that the lawyer-judge never actually appeared as attorney of record in the justice court, and that both this lawyer-judge and the lawyer who appeared on his/her behalf may have been acting under the incorrect assumption that the case would be pending in justice court on a provisional basis only and that this fact would suffice to render the appearance ethically acceptable.

            Further, we note that subsequent to sending the Committee the inquiry, the inquirer informed us of a later conversation with the part-time lawyer-judge in which the latter proferred an explanation of what had occurred, leading the inquirer to conclude that there may very well not have been an intentional violation of the Rule. The judge states that he/she admonished the lawyer-judge "to be more cognizant and careful about compliance with the applicable practice restrictions in the future."

            Thus, the possibility that facts may emerge after the sending of an inquiry which may bear on how a judge should respond to a particular situation illustrates the soundness of our previously expressed view that "the Committee, as a matter of general practice, cannot serve as a screening body with respect to particular facts that are alleged to show a 'substantial violation' of the Rules. The inquiring judge must make that determination for himself or herself." Opinion 97-84. Accordingly, if, taking all the facts and circumstances into consideration, the inquiring judge concludes that "what occurred was insubstantial or merely a technical violation of the Rules, the matter is left to the judge's discretion." Opinion 97-84.