January 4, 2017
PERSONAL & CONFIDENTIAL
This responds to your inquiry (16-132) asking whether you must report a litigant’s former attorney for alleged, unspecified sexual misconduct briefly alluded to in open court and in the attorney’s absence.
A judge must always act to promote public confidence in the judiciary’s integrity and impartiality (see NYCRR 100.2[A]). Thus, if a judge receives information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Rules of Professional Conduct (see 22 NYCRR Part 1200), he/she must take appropriate action (see 22 NYCRR 100.3[D]). The Committee has generally advised judges that they must determine whether there is a substantial likelihood that an attorney committed a substantial violation of the Rules of Professional Conduct because a judge is in the best position to evaluate and assess all relevant, known circumstances (see Opinion 10-85).
Where, as here, a judge has no direct personal knowledge whatsoever about any details of the purported misconduct of an attorney, the judge has wide discretion to make the threshold determination whether there is a substantial likelihood of a substantial violation under all the circumstances currently known to the judge. A judge is under no duty to investigate whether the allegations are true.
Enclosed for your convenience are Opinions 15-183; 15-138/15-144/15-166; and 10-85 which address this issue.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Div., First Dep’t (Ret.)
Hon. Margaret T. Walsh
Family Court Judge
Acting Justice, Supreme Court