June 18, 2019
This responds to your inquiry (19-54) whether you should contact the District Attorney’s office upon learning the non-attorney diversion program coordinator at the DA’s Office gave advice to a defendant, who entered a guilty plea by mail, to change a plea to not guilty so the defendant could enter the diversion program. You have advised the defendant seemed to believe the coordinator was serving as defense counsel.1
A judge has certain disciplinary obligations to take appropriate action if the judge “receives information indicating a substantial likelihood” that a lawyer or another judge “has committed a substantial violation” of the applicable professional ethics rules, but this reporting obligation applies only to a lawyer (22 NYCRR 100.3[D]) or “another judge” (22 NYCRR 100.3[D]). A judge has no disciplinary obligation to report a non-lawyer or non-judge, even if criminal or other misconduct occurs in a case before the judge (see Opinion 16-25).
Under these circumstances, you may, but are not required to, report the non-lawyer’s behavior to his/her employer (see Opinions 17-07; 16-25;14-122).
Enclosed for your convenience, are Opinions 17-07; 16-25; and 14-122, which address this issue.
Very truly yours,
George D. Marlow, Assoc Justice
Appellate Div., First Dept. (Ret)
Hon. Margaret T. Walsh
Supreme Court Justice
1 The Committee cannot comment on whether the non-attorney diversion program coordinator was engaged in the unauthorized practice of law.