November 18, 2015
This responds to your inquiry (15-180) asking whether you must report an attorney for misconduct. You say you have substantial knowledge of a substantial violation of the Rules of Professional Conduct committed by an attorney who appeared before you, and you have further concluded that reporting is mandatory under the circumstances presented (see Opinion 10-85 [threshold for mandatory reporting is a “violation that seriously calls into question the attorney’s honesty, trustworthiness or fitness to practice law”]). However, the improper conduct has been covered extensively in the media, and the attorney’s former employer issued a press release that the attorney no longer worked for the employer. Although you believe the attorney’s former employer has reported the attorney to the grievance committee, you have not confirmed this belief.
The Committee has previously advised that, when reporting is mandated under Section 100.3(D)(2), a judge must report the misconduct unless he/she knows it has already been reported. Thus, unless you know that the specific conduct you have described has been reported, you should report the conduct. However, you are not required to conduct an investigation to determine whether the attorney has previously been reported and/or disciplined for this specific conduct. Rather, under the circumstances presented, if you are uncertain whether a complaint has been made to an appropriate entity, you should simply report the attorney.
Enclosed, for your convenience, are Opinions 13-77; 10-122; and 10-85 which address this issue.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)