Opinion 25-184

December 18, 2025

Digest: On these facts, a recently suspended attorney’s inquiry about the status of a pending motion does not give rise to any ethical obligation on the part of the presiding judge.

Rules:    Judiciary Law §§ 476-a; 486; Education Law § 6512; 22 NYCRR 100.2; 100.2(A); 100.3(D)(2); Opinions 24-139; 10-106; In re Bruce Feinberg, 194 AD3d 126 (1st Dept 2021).

Opinion:

          During an adjournment of a bench trial conducted on intermittent dates, an attorney for one of the parties was suspended from the practice of law.  The suspended attorney advised that he/she was suspended and could not proceed with the representation, but also asked if the court had decided a pending oral motion for dismissal which the attorney had made before his/her suspension.  The judge asks if he/she must notify the attorney grievance committee of the suspended attorney’s inquiry.

          A judge must always avoid even the appearance of impropriety and act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]).  A judge who receives information indicating a “substantial likelihood” that an attorney has committed a “substantial violation” of the Rules of Professional Conduct must take “appropriate action” (22 NYCRR 100.3[D][2]). 

          Where the two-prong test is met, and a judge knows that a suspended attorney is practicing law in defiance of an order of suspension, the judge must report the attorney to an attorney grievance committee (see generally Judiciary Law §§ 476-a; 486; Education Law § 6512; In re Bruce Friedberg, 194 AD3d 126 [1st Dept 2021] [holding that suspended attorney’s two-and-one-half years of paralegal work at law firm constituted unauthorized practice of law]; cf. Opinions 24-139; 10-106). 

          Here, however, the two-prong test is not met on the facts presented.  The suspended attorney advised the court that he/she was suspended and could not continue the representation.  The suspended attorney had already made an oral motion to dismiss before he/she was suspended from the practice of law, and nothing in the inquiry suggests that the suspended attorney made any new applications or attempted to renew, supplement, or modify any prior applications.  Mere inquiry by the suspended attorney about the status of a pending motion, without more, does not create a “substantial likelihood” of a substantial violation of the suspension order for purposes of the Rules Governing Judicial Conduct. 

Accordingly, the suspended attorney’s inquiry raises no ethical concerns obligating the judge to take action.