June 12, 2014
Digest: (1) A judge is not ethically required to take any action in discharge of his/her disciplinary responsibilities, where the judge’s sole source of knowledge of wrongdoing on the part of an attorney is the fact that the attorney has agreed to an adjournment in contemplation of dismissal of certain charges against the attorney. (2) A judge may attest to and affirm facts within his/her personal knowledge and observation, including the judge’s recollection of witnessing the execution of a family member’s testamentary instrument, and the judge’s recognition of certain signatures or handwriting on the instrument.
Rules: Judiciary Law § 90(4); 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(D)(2); Opinions 14-39; 12-10; 10-86; 10-85 (Amended).
The inquiring judge seeks guidance on two unrelated questions. 1) the judge states that a person, a licensed attorney, now before the judge has agreed to settle certain neglect charges with an adjournment in contemplation of dismissal. Consequently, the judge asks whether these facts trigger the judge’s disciplinary responsibilities. 2) the judge states he/she witnessed the execution of the judge’s parent’s last will and testament approximately two decades ago. The judge thus asks if he/she may now “attest and affirm that the signature on the instrument is that of” the judge’s parent, both as a witness to the will, and as a person familiar with the judge’s parent’s handwriting. The judge also asks if he/she may “attest and affirm to [his/her] own signature” on the instrument.
A judge must avoid impropriety and its appearance in all the judge’s activities (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, 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 addition, a judge may not lend the prestige of judicial office to advance the private interests of the judge or others and may not testify voluntarily as a character witness (see 22 NYCRR 100.2[C]).
1. Disciplinary Responsibilities
The Committee generally has advised that the judge involved must determine whether there is a “substantial likelihood” that an attorney has committed a “substantial violation” of the Rules of Professional Conduct, because that judge is in the best position to evaluate and assess all the relevant, known circumstances (see Opinion 10-85 [Amended]; 22 NYCRR 100.3[D]). A judge need not take any action unless he/she determines that the two-part standard is met (see Opinion 10-85 [Amended]). Moreover, except in the unusual case when the alleged misconduct is so egregious that it seriously calls into question the attorney’s honesty, trustworthiness or fitness to practice law, deciding what is the appropriate action is also left solely to a judge’s discretion (see id.).
The Committee has previously advised that the mere knowledge that an attorney is under indictment -– even if the indictment is for charges that would require disbarment if the attorney were ultimately convicted (see e.g. Judiciary Law § 90) –- does not, without more, require the judge to take any action in the discharge of his/her disciplinary obligations (see Opinion 10-86). Thus, for example, reporting is not mandatory when an attorney appearing before a judge advises the judge that the attorney is under indictment (see Opinion 14-39).
Here, too, it appears the inquiring judge has learned, while performing his/her judicial duties, that an attorney has been accused of wrongful conduct.1 The judge has no personal knowledge of the underlying circumstances, and, at this stage, it appears these neglect charges are unproven.
An adjournment in contemplation of dismissal is “an adjournment of the action without date ordered with a view to ultimate dismissal of the accusatory instrument in furtherance of justice” (see e.g. Suffolk County District Court, Criminal Traffic & Parking Division - Glossary [visited 9/16/2014]). From this definition, the Committee understands that an adjournment in contemplation of dismissal does not, without more, constitute an admission of guilt.
Accordingly, the Committee believes the “facts” set forth in the inquiry do not constitute “information indicating a substantial likelihood” the respondent attorney has engaged in the alleged conduct (see 22 NYCRR 100.3[D]). The judge therefore has no obligation to take any action in the discharge of his/her disciplinary responsibilities under the circumstances described (see generally 22 NYCRR 100.3[D]; Opinions 14-39; 10-86).
2. Judge as Fact Witness
As to the second question, it appears the inquiring judge wishes to serve, voluntarily, as a fact witness concerning certain matters within his/her personal knowledge. The Committee has previously advised:
While a judge may only testify as a character witness if under subpoena or in response to an official request from an entity such as a court, district attorney, probation or parole department, no such rule bars a judge from testifying as a fact witness (see Opinion 10-118). For example, the Committee has advised that a judge may provide a factual affidavit and testify as a fact witness regarding an accident the judge witnessed (see Opinion 98-118 [Vol. XVII]).
Here, the judge proposes to witness his/her relative’s signature and validate, for the foreign country’s military pension, the identity of the judge’s relative. The judge will be merely attesting to facts within his/her personal knowledge and observation, which is akin to providing a factual affidavit and is thus permissible (see Opinions 10-118; 98-118 [Vol. XVII]). Therefore, the judge may authenticate his/her relative’s signature on a foreign pension document.
(Opinion 12-10). Accordingly, the inquiring judge may similarly attest to and affirm facts within his/her personal knowledge and observation, including (but not limited to) the judge’s recollection of witnessing his/her parent’s will and the judge’s recognition of certain signatures or handwriting, including those of the judge and his/her parent.
1 The inquiry does not provide details of the neglect charges asserted against the attorney. The Committee cannot, and does not, express any view concerning whether the specific charges before the inquiring judge, if proved, would require disbarment under Judiciary Law § 90(4) or otherwise call into question the attorney’s honesty, trustworthiness, or fitness as a lawyer.