Opinion 09-142

June 3-4, 2009

Digest:         A judge who concludes that an attorney deliberately sought to deceive the court and acted extremely unprofessionally in defiance of court directives should report the attorney to the appropriate disciplinary committee.

Rules:          22 NYCRR 100.3(D)(2); 100.3(E)(1); Opinions 09-49; 08-198; Joint Opinion 08-183/08-202/09-112; Opinions 07-129; 06-99; 06-24; Joint Opinion 05-105, 05-108, and 05-109; Opinions 05-37; 03-59; 02-129; 02-85; 00-64.

Opinion:

         The inquiring judge is presiding over a misdemeanor criminal case. The judge states that defense counsel has repeatedly missed or arrived hours late for scheduled court appearances and had ignored repeated directives to explain and provide support for his/her contradictory excuses for failing to appear. According to the judge, when the attorney failed to appear for the start of his/her client’s jury trial, the attorney offered a belated excuse (after the jury had already been dismissed) that he/she “made the wrong turn.” The attorney subsequently submitted an affirmation explaining that his/her failure to appear was in fact due to a conflicting court appearance in another court, which the attorney had earlier promised to reschedule. The judge also states that on the day of the sentencing hearing, the attorney called to ask the court to reschedule because his/her client just had a baby. When the defendant appeared before the judge on a later date, she advised the court that her attorney’s excuse was untrue; her baby had been born more than two weeks before the date of the sentencing hearing. She also advised the judge that while she was traveling to court on the day of the sentencing hearing, the attorney advised her by telephone that he/she “was here [at the court] and that you [the judge] said not to come.” The judge advises that the attorney’s statement was false.

         The judge asks whether he/she must report the attorney to the appropriate attorney disciplinary committee.

         Pursuant to the Rules Governing Judicial Conduct, a judge who “receives information indicating a substantial likelihood that a lawyer has committed a substantial violation of the applicable rules of professional conduct shall take appropriate action” (22 NYCRR 100.3[D][2]). A substantial violation is one that involves an attorney’s honesty, trustworthiness, or fitness to be a lawyer (see Opinions 09-49; 06-99). The Committee has consistently advised that the judge who observes an attorney’s conduct is in the best position to determine whether the attorney has committed a substantial violation of the rules of professional conduct (see e.g. Opinions 08-198; 07-129; 06-99; 06-24).

         However, in some instances, the ethical violation described is “so clearly serious or egregious that the Committee has advised a judge that he/she should report it to a disciplinary authority” (Opinion 07-129 [egregious attorney misconduct]; see also Joint Opinion 05-105/05-108/05-109 [judicial misconduct]; Opinions 05-37 [attorney misconduct]; 03-59 [judicial misconduct]; 02-129 [attorney misconduct]; 00-64 [judicial misconduct]). For example, if a judge concludes that the attorney at issue “engaged in a deliberate deception, intended to perpetrate a fraud and deceive the parties and/or the court..., the appropriate action is clear: the matter should be reported to the attorney disciplinary committee” (Opinion 02-85). Similarly, the judge must report an attorney to the attorney disciplinary committee when the attorney has “admitted under oath that he/she committed perjury” (Opinion 07-129); when the judge concludes that an attorney “has attempted to unduly influence the judge’s decisions and has acted extremely unprofessionally” (Opinion 05-37); and when a plaintiff claims eight months after trial that his/her attorney never informed plaintiff of a substantial settlement offer (Opinion 02-129).

         In the Committee’s view, the conduct the inquiring judge describes also is clearly serious and egregious because it raises the possibility that the attorney deliberately sought to deceive the court and his/her own client, and repeatedly acted in an extremely unprofessional manner in defiance of court directives. Such conduct, if it occurred as described, directly implicates the attorney’s honesty, trustworthiness and fitness to be a lawyer. While the inquiring judge is, of course, in the best position to assess whether his/her observations and conclusions about the situation are accurate, the sharply conflicting accounts of the attorney and his/her client regarding their non-appearance at the sentencing hearing “are of a kind best sorted out by an independent agency with investigative capability” (Joint Opinion 05-105/05-108/05-109; see also Opinion 02-129). If the judge believes that the facts as he/she has presented them to this Committee are true, the judge should report the attorney to the appropriate disciplinary committee for investigation.

         After reporting an attorney to a disciplinary committee, a judge must disqualify him/herself in all matters where the attorney appears before him/her while the disciplinary matter is pending and for two years thereafter (see 22 NYCRR 100.3[E][1]; Joint Opinion 08-183/08-202/09-112; Opinions 06-99; 05-37). And, to protect the attorney’s right to confidentiality, the judge may not reveal the reason for his/her disqualification (see Joint Opinion 08-183/08-202/09-112 ). Therefore, remittal of disqualification is not available, either while the disciplinary matter is pending or during the two years thereafter if the matter is resolved in the attorney’s favor either by dismissal of the complaint or private sanction (see Joint Opinion 08-183/08-202/09-112).