January 29, 2013
This responds to your inquiry (13-10) asking what your reporting obligations are concerning an attorney you believe has an alcohol abuse problem. You indicate that you have spoken to the attorney and have also contacted the Lawyer Assistance Program for advice.
A judge who receives information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Rules of Professional Conduct must take appropriate action (see 22 NYCRR 100.3[D]). In Opinion 10-85, the Committee determined that “appropriate action” may be something less than reporting the attorney to the governing disciplinary authority. In assessing the situation, the particular judge must determine whether an attorney’s conduct seriously calls into question the attorney’s honesty, trustworthiness or fitness to practice law, in which case the judge must report the conduct to the governing disciplinary authority, or whether some lesser action is sufficient. However, it is generally the judge, who is in the best position to evaluate the situation, who determines what action is appropriate under the particular circumstances involved.
Based on these facts, the Committee does not conclude that the attorney’s conduct is, at this point, so egregious that further action, such as reporting the attorney to the disciplinary committee, is warranted. However, if the conduct escalates and you are unsure how to proceed after reading Opinion 10-85, please feel free to contact the Committee for further advice.
Enclosed, for your convenience is Opinion 10-85, which sets forth in detail a judge’s reporting obligations pursuant to 22 NYCRR 100.3(D)(2).
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)