Opinion 16-159

December 8, 2016

Digest:         (1) A judge who is dissatisfied with an attorney’s explanation of the propriety of his/her conduct in connection with a proposed default divorce decree must determine, based on the facts and circumstances known to the judge, whether there is a substantial likelihood that the attorney’s actions constitute a substantial violation of the Rules of Professional Conduct and, if so, must take appropriate action. (2) If the judge determines in good faith that he/she is legally permitted and/or legally required to sign the decrees, he/she may do so without violating the Rules Governing Judicial Conduct, assuming he/she can be fair and impartial and is not otherwise disqualified from presiding in matters involving the attorney. The Committee suggests the judge consult with an administrative judge for assistance in navigating any applicable legal or administrative issues.

Rules:          Judiciary Law § 212(2)(l); 22 NYCRR 100.2(A); 100.3(D)(2); Opinions 16-55; 15-138/15-144/15-166; 14-34; 09-137; 08-198.

Opinion:

            A supreme court justice has received proposed default divorce decrees for his/her signature along with signed settlement agreements and associated supporting documents. The papers were submitted by attorney-mediators on behalf of the parties. The judge directed the attorneys’ attention to NYS Bar Association Ethics Opinion 736. In response, the attorneys provided a copy of Rule 2.4, “Lawyer Serving as Third Party Neutral,” and a fully executed “Agreement to Mediate,” which apparently contains certain disclosures and client consents. The judge is not satisfied with this response and now asks whether he/she must report the attorneys and whether he/she may sign the proposed decrees.

         A judge must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, if a judge receives information indicating a “substantial likelihood” that an attorney has committed a “substantial violation” of the applicable rules of professional ethics, the judge must take “appropriate action” (22 NYCRR 100.3[D][2]).

1. Must the Judge Report the Attorneys?

            Each stage of the analysis is ordinarily confined to the judge’s discretion. Indeed, even an attorney’s purported non-compliance with a bar association ethics committee opinion is not determinative (see Opinion 08-198).

A. “Substantial Likelihood” Prong

            With respect to the “substantial likelihood” prong, the Committee advised in Opinion 15-138/15-144/15-166 (citations omitted):

A judge is under no duty to investigate whether allegations of misconduct are true. Moreover, the issue of whether a judge possesses information indicating a substantial likelihood that an attorney has committed a substantial violation of the Rules of Professional Conduct ... is typically within the inquiring judge’s discretion. This is because, generally, the inquiring judge is in the best position to evaluate and assess all relevant, known circumstances, including the reliability of the information known to the judge.

            The Committee cannot say, based on the information provided in the inquiry, that the inquiring judge has received any information indicating a substantial likelihood that an attorney has violated the Rules of Professional Conduct. Accordingly, it remains in the judge’s sole discretion to determine whether or not this prong is met (see e.g. Opinion 08-198).

B. “Substantial Violation” Prong

            With respect to the “substantial violation” prong, the Committee advised in Opinion 15-138/15-144/15-166 (citations omitted):

If the judge determines, based on the information he/she has already received, that there is a substantial likelihood of an ethical violation, he/she must also consider whether the violation is “substantial,” under all the circumstances known to the judge.

This aspect, too, must be confined to the judge’s discretion in all but the clearest and most unambiguous cases, because the inquiring judge is in the best position to evaluate and assess all relevant, known circumstances. In determining whether a violation is “substantial,” the judge may again consider a wide variety of factors, including (among many others) the experience level of the attorney or judge, whether the violation appears to have been inadvertent or willful, whether it appears to be part of a larger pattern of improper behavior or an isolated incident, whether it reflects adversely on the individual’s honesty, trustworthiness, and fitness as a lawyer or judge, and whether the violation, if it occurred as described, is likely to undermine public confidence in lawyers or judges if not investigated and addressed.

            Again, the Committee cannot say, based on the information provided in the inquiry, that the attorneys’ conduct, even assuming it violates the Rules of Professional Conduct, should be considered a “substantial violation.” Accordingly, it remains in the judge’s sole discretion to determine whether or not this prong is met (see e.g. Opinion 08-198). As noted in Opinion 15-138/15-144/15-166:

If the judge is not certain that the conduct violates the applicable ethics rules, or concludes that the conduct is at most an insubstantial or a mere technical violation, he/she again need not take any action, although the judge may nonetheless do so, in his/her discretion.

C. “Appropriate Action”

            Even if the judge determines, based on the information he/she has already received, that both prongs are satisfied (i.e. that there is a substantial likelihood of a substantial violation of the applicable ethics rules), the judge’s only obligation is to take “appropriate action,” as indicated by all the surrounding circumstances known to the judge at the time. Opinion 15-138/15-144/15-166 (citations omitted) explains:

In the vast majority of instances, even after the judge decides it necessary to take “appropriate action,” the issue of what action is “appropriate” under the circumstances is nevertheless within the judge’s discretion.

Reporting to a disciplinary body is not mandatory unless the conduct at issue seriously calls into question a lawyer’s or judge’s honesty, trustworthiness or professional fitness, thus warranting, at the very least, an inquiry by the appropriate disciplinary body.

By contrast, if the judge concludes the conduct, though a substantial violation of ethics rules, does not reach that level of egregiousness, the judge has the discretion to determine that some lesser action is appropriate under the circumstances.

            Here, too, the Committee cannot say, based on the information provided in the inquiry, that the attorneys’ conduct rises to the level of mandatory reporting (even if it violates the Rules of Professional Conduct, an issue that the Committee cannot address). Accordingly, the question of what action, if any, is appropriate under the circumstances, is solely within the judge’s discretion.

2. May the Judge Sign the Degrees?

            The Committee cannot determine whether the judge is legally permitted and/or required to sign the proposed decrees (see Judiciary Law § 212[2][l]). However, “a judge who makes a good-faith legal determination based on the apparently controlling statutes and case law (if any) is necessarily acting ethically” (Opinion 16-55; see also Opinion 09-137 [“a judge who directs a pre-trial conference based upon controlling statutory language, per se acts ethically, even if an appellate court later reverses on the ground that the judge's statutory interpretation was erroneous”]).

         Accordingly, if the judge determines in good faith that he/she is legally permitted and/or legally required to sign the decrees, he/she may do so without violating the Rules Governing Judicial Conduct, assuming he/she can be fair and impartial and is not otherwise disqualified from presiding in matters involving the attorney (see e.g. Opinion 15-138/15-144/15-166 [a judge who files a complaint against an attorney “must disqualify him/herself in all cases involving that attorney while the disciplinary matter is pending and for two years thereafter”]).

         Conversely, if the judge determines in good faith that he/she is not legally permitted to sign the decrees, he/she must not do so unless and until required by court order or other appropriate legal mandate. As always, “any questions concerning the correctness of the judge’s interpretation of the law, to the extent unsettled, must be raised and addressed by persons with standing in the appropriate legal venue” (Opinion 14-34 [internal quotation marks and citation omitted]).

         Given the nature of the judge’s concerns, the potential impact of his/her decision on the judge’s docket, and a potential disparity between the way such decrees are handled in the judge’s part as opposed to other parts of the same court, the Committee suggests the judge consult with an administrative judge for assistance in navigating any applicable legal or administrative issues.