March 24, 2016
This responds to your inquiry (16-39) asking about your ethical obligation to report two lawyers whose firm IOLA account has been used for improper purposes.
As you are satisfied the matter involving one of the attorneys has already been reported to the attorney grievance committee, you have no further reporting obligation as to that attorney.
As to the second attorney, you must decide if there is a substantial likelihood he/she engaged in any misconduct. If so, you must then decide if that conduct substantially violates the Rules of Professional Conduct. If both prongs are met, you must take appropriate action. However, the type of action is entirely in your discretion. You need not report the second attorney unless you conclude his/her conduct seriously calls into question his/her honesty, integrity, trustworthiness, or fitness as a lawyer.
Enclosed, for your convenience, are Opinions 13-127; 13-77; 10-122; and 09-49 which address this issue.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dep’t (Ret.)