May 11, 2015
PERSONAL AND CONFIDENTIAL
This responds to your inquiry (15-54) asking whether you are obligated to report two prosecutors to an attorney grievance committee based on what you believe to be professional misconduct.
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]). The judge must determine, based on the information received, whether there is a substantial likelihood that the attorney engaged in the alleged misconduct and, if so, whether that conduct constitutes a substantial violation of the Rules. If the judge is satisfied that both elements are met, the judge must take “appropriate action”(id.). A judge must report an attorney for alleged misconduct only if the judge concludes that the misconduct seriously calls into question the attorney’s fitness as a lawyer; in all other circumstances, the judge retains full discretion to determine the appropriate action under the circumstances.
The Committee cannot discern from the facts you presented in your inquiry whether it is likely that any violation of the Rules of Professional Conduct has occurred. Accordingly, the Committee concludes that it is entirely within your discretion, as the judge who has personally observed the behavior, to determine whether a substantial violation has occurred and (if so) the appropriate action to take under the circumstances. Assuming you conclude a substantial violation has occurred, the Committee believes it is within your discretion to determine whether addressing the prosecutors’ conduct in a decision, as you have already done, constitutes appropriate action. You may, of course, in your sole discretion, take any other additional action you deem appropriate under the circumstances, including (but not limited to) counseling, reprimanding, admonishing, sanctioning, reporting the attorneys to their superiors or to the grievance committee. However, if you choose to report either attorney to the grievance committee, you are disqualified from presiding over the current case and any other in which the reported attorney appears. Remittal of disqualification is not available while the disciplinary matter is pending, and for two years thereafter, unless the attorneys waive their rights to confidentiality in the disciplinary matter or if the disciplinary matter results in a public discipline.
Enclosed, for your convenience, are Opinions 10-122 and 10-85 which address this issue.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)