Opinion 18-140

October 10, 2018

Dear :

         This responds to your inquiry (18-140) asking if you have any disciplinary obligations after learning a non-attorney may have improperly drafted legal memoranda for an attorney. More specifically, you ask if you must report the attorney to the grievance committee and/or the non-attorney to the District Attorney or other authority. You have explained that a self-represented non-attorney defendant sought permission to file a joint memorandum of law with a co-defendant who is appearing by counsel; in making this request, the non-attorney averred that he/she has “occasionally drafted” memoranda of law for the co-defendant.

         The Committee previously advised that a judge who decides there is a “substantial likelihood” a lawyer committed a “substantial violation” of the Rules of Professional Conduct must take “appropriate action” (22 NYCRR 100.3[D][2]). The initial question of whether the information the judge possesses meets the “substantial likelihood” threshold is typically within the inquiring judge’s discretion because, generally, the inquiring judge is “in the best position to evaluate and assess all relevant, known circumstances” (Opinion 15-135). We have, however, advised a judge has no duty to investigate whether misconduct claims are true (see Opinions 15-135; 13-173).

         Here, you suspect the misconduct based upon an email from a non-attorney defendant but your inquiry does not suggest you have any actual knowledge of attorney misconduct. Thus, we do not think, on the facts described, there is a substantial likelihood the lawyer has committed a substantial violation of the rules requiring you to take any further action (see Opinion 15-135; 15-119).

         Moreover, we have consistently advised the Rules Governing Judicial Conduct do not require a judge to report criminal activity or other misconduct by a non-lawyer, however, you may do so at your discretion (see Opinion 13-173).

         Enclosed, for your convenience, are Opinions 15-135;15-119; and 13-173 for your review, which address this issue.

                                                 Very truly yours,

                                                 George D. Marlow, Assoc Justice

                                                 Appellate Div., First Dept. (Ret)

                                                 Committee Co-Chair

                                                 Hon. Margaret T. Walsh

                                                 Family Court Judge

                                                 Acting Justice, Supreme Court

                                                 Committee Co-Chair