March 28, 2012
This responds to your inquiry (12-29) asking about your reporting obligations regarding an attorney whom you have previously sanctioned and who is now engaging in conduct you believe to be unethical.
The Committee has consistently advised that a judge, who becomes aware of an attorney’s potential misconduct, is in the best position to evaluate and assess the relevant circumstances to determine whether there is a substantial likelihood the attorney committed a substantial violation of the Rules of Professional Conduct(RPC). If the judge concludes both elements are satisfied, the judge must then decide what “appropriate” action should be taken (see 22 NYCRR 100.3[D]).
Any question regarding an interpretation of an RPC rule which you believe the attorney has violated is beyond the scope of the Committee’s statutory mandate. If you determine the attorney has committed a substantial violation of the RPC, then you must make the discretionary decision as to whether reporting him/her or undertaking some less severe action is appropriate under the circumstances (see opinions cited hereinafter).
Enclosed, for your convenience, are Opinions 10-122; 10-85; 10-64; 08-198; and 08-08 which address this issue.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)