Opinion 19-44

June 17, 2019

Dear :


         This responds to your inquiry (19-44) asking if you are obliged to report an attorney, appearing pro se before you in one case, who makes false claims about you in affidavits and in other unrelated proceedings he/she has brought against you.1 You also must recuse from presiding in the matter if you report this attorney.

         A judge, who has information indicating a “substantial likelihood” that a lawyer committed a “substantial violation” of the Rules of Professional Conduct, must take “appropriate action” (22 NYCRR 100.3[D][2]). If the misconduct is so serious that it calls into question the attorney’s honesty, trustworthiness, or fitness as a lawyer, the judge must report the conduct to the appropriate disciplinary authority (see Opinion 18-29).

         We previously advised that a judge with personal knowledge an attorney made perjurious statements in an affirmation must report it to the appropriate attorney disciplinary committee (see Opinions 18-29; 13-77; and 09-142). After so reporting the attorney, the judge must disqualify him/herself in all matters where the attorney appears, both while the disciplinary matter is pending and for two years thereafter (see 22 NYCRR 200.3[E][1]; Opinions 18-29; and 15-231). To protect the attorney’s right to confidentiality, the judge may not reveal the reasons for the disqualification (see Opinion 08-183/08-202/09-112). Thus, remittal of disqualification is unavailable unless the lawyer waives confidentiality or the grievance committee issues a public disciplinary decision (see Opinion 08-183/08-202/09-112).

         In light of this broad disqualification requirement, we previously advised a judge may, in his/her discretion, wait until the proceeding ends to report the attorney (see Opinion 15-231).

         For your convenience, enclosed Opinions 18-29; 15-231;13-77; 09-142; and 08-183/08-202/09-112 address this issue.

                                                 Very truly yours,

                                                  George D. Marlow, Assoc Justice

                                                  Appellate Div., First Dept. (Ret)

                                                  Committee Co-Chair


                                                   Hon. Margaret T. Walsh

                                                   Supreme Court Justice

                                                   Committee Co-Chair



1 The Committee necessarily assumes the other unrelated proceedings filed against the judge result solely from the judge’s performance of his/her judicial duties.