Opinion 18-176/18-176(A)/18-177


December 11, 2018

 

Digest:       (1) A judge who suspects the district attorney of possible misconduct, but lacks reliable information evidencing a substantial likelihood of a substantial violation, is not ethically required to take any action concerning the possible misconduct.

(2) If a judge decides to report the district attorney to the grievance committee, he/she must thereafter disqualify him/herself from cases in which the district attorney personally appears during the pendency of the disciplinary process and for two years after it ends. Remittal is not possible unless the grievance committee makes the misconduct a matter of public record or the district attorney waives confidentiality. The reporting judge may continue to preside in cases brought by assistant district attorneys, provided he/she can be fair and impartial.

(3) If a judge concludes that it is mandatory to report an attorney’s possible misconduct under the circumstances known to him/her, but knows the alleged misconduct has already been reported to the appropriate disciplinary authority, he/she need not personally report that alleged misconduct.

(4) If the issue of the district attorney’s possible misconduct is likely to come before the county court judge, the part-time judge who serves as his/her court attorney should disclose to the county court judge that he/she could be called as a witness, but should avoid substantive ex parte communications to the extent practicable.

(5) On these facts, a county court judge whose staff members may be called as witnesses retains discretion to preside over the case if he/she concludes he/she can be fair and impartial, but must (a) insulate court personnel who are potential witnesses from the case and disclose the insulation to the parties; (b) instruct the insulated court personnel not to discuss the case with him/her ex parte; and (c) disclose any substantive ex parte communications he/she may have received from them. The judge may consult with an administrative judge concerning any difficulties implementing these recommendations.

(6) If the county court judge’s court attorney decides to report the district attorney’s alleged misconduct to the grievance committee, the county court judge must insulate the court attorney from all cases personally prosecuted by the district attorney.

(7) A judge who is a potential fact witness in the case may, but is not required to, volunteer objective factual information concerning his/her personal observations to counsel for either side.

 

Rules:        22 NYCRR 100.2(A); 100.3(D)(2); 100.3(B)(6); 100.3(B)(6)(c); 100.3(E)(1); 1200, Rule 4.2(a); Opinions 17-158; 17-06; 16-162; 16-146; 16-39; 15-231; 15-180; 15-157; 15-138/15-144/15-166; 15-135; 14-88; 14-39; 13-127; 10-118; 10-86; 01-25; 95-148; 88-155; People v Moreno, 70 NY2d 403 (1987).


Opinion:


         We have received inquiries from two justices of a local town or village court and one county court judge. One justice also serves as court clerk to the county court judge.1 While a defendant was awaiting arraignment on felony charges in the local justice court, both justices and certain county court personnel who happened to be present observed the district attorney conversing with the defendant and other individuals while they waited for defense counsel to arrive. The justices were in a position to see and hear some, but not all, of the conversation. There is no indication in the inquiries that the justices heard any discussion of the defendant’s pending case.2 The arraignment apparently proceeded without incident, and the case is now before the county court judge. At a case conference, defense counsel raised concerns about the district attorney’s conversation with the defendant in the justice court and said he/she would file a motion. The county court judge assumes that defense counsel plans to seek relief on the grounds that the district attorney knowingly spoke to a represented defendant without the presence or permission of the defendant’s attorney. The three judges ask several questions, which we will address below.


         A judge must always act in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). Thus, for example, 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” (22 NYCRR 100.3[D][2]). A judge must not “initiate, permit, or consider ex parte communications, or consider other communications made outside the presence of the parties or their lawyers,” unless an exception applies (22 NYCRR 100.3[B][6]) and must disqualify him/herself in any proceeding where his/her impartiality “might be reasonably be questioned” (22 NYCRR 100.3[E][1]).



1)      Must or may any of the judges report the district attorney?


         Opinion 14-88 (citations omitted) summarizes the general principles and analysis as follows:

 

In general, the Committee has advised that a judge must determine whether in a particular case there is a “substantial likelihood” an attorney has committed a “substantial violation” of the Rules of Professional Conduct based on all the facts and circumstances known to the judge. A judge need not undertake any investigation of an attorney’s alleged misconduct. If a judge concludes there is a substantial likelihood that an attorney has committed a substantial violation of the Rules of Professional Conduct, the judge “must take appropriate action.” Because “appropriate action” depends on the circumstances of each case, it is ordinarily left to the judge’s discretion to determine the appropriate action. However, if the judge concludes the misconduct seriously calls into question the attorney’s honesty, trustworthiness or fitness as a lawyer, then the only appropriate action is to report the attorney to the appropriate disciplinary authority.

 

         Of particular note, judges need not take any action in response to allegations of attorney misconduct when one or both of the substantiality tests have not been met. For example, absent a court directive or ethics rule requiring the attorneys to refrain from speaking to a non-party witness during a recess in the midst of a hearing, a court attorney-referee need not take any action on learning that an attorney briefly spoke to the witness about subpoenaed materials during the recess (see Opinion 15-157). Likewise, a judge need not take action merely because he/she knows that an attorney was charged with grand larceny (see Opinion 10-86) or is under indictment (see Opinion 14-39). A similar result applied when an attorney serving as a court interpreter allegedly gave legal advice to a witness who was not his/her client, but the judge has no direct knowledge of the incident (see Opinion 17-06). Nor must a judge take action under Section 100.3(D)(2) if he/she hears a second-hand report of a casually overheard and possibly privileged conversation and “has jumped to the unsupported conclusion that the attorney was ... somehow encouraging his/her client to engage in intimidation, threats, or coercion” (Opinion 15-135) or receives evidence during a trial that an attorney used his/her Interest On Lawyers Account to pay personal expenses, where the evidence of impropriety was, “at best, inconclusive” (Opinion 13-127).


          In our view, the facts presented here likewise do not necessarily constitute attorney misconduct. The concerns raised center on Rule 4.2(a) of the Rules of Professional Conduct, which states (emphasis added) that

 

a lawyer shall not communicate or cause another to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the other lawyer or is authorized to do so by law.


Nothing here suggests these judges have any direct or first-hand knowledge of any violation of this rule.3 While the two justices observed the district attorney and the defendant conversing, neither knows if the conversation involved “the subject of the [defendant’s] representation” (22 NYCRR 1200, at Rule 4.2[a]). Because they have no knowledge of any violation of the attorney ethics rules, let alone a substantial one, and no duty to investigate the allegation further, none of them need take any action under Section 100.3(D)(2) at this time (see e.g. Opinion 17-158 [if a judge “is not certain the attorney’s conduct violates applicable ethics rules, or concludes the conduct is insubstantial or a mere technical violation, he/she need not act”]).4


         Of course, any of these judges may, in their discretion, choose to report what they have observed to a grievance committee or take other appropriate steps (see e.g. id.).



2)      What is the effect of reporting the district attorney?


         We have attempted to “limit the administrative difficulties that arise from proper discharge of [a judge’s disciplinary] duties” (Opinion 16-146). Accordingly, we advised (id. [citations omitted]):

 

[I]f a judge “files a formal or informal complaint against [an] attorney, the judge must disqualify him/herself in all cases involving that attorney while the disciplinary matter is pending and two years thereafter.” This applies to the District Attorney whom the judge has reported. Moreover, in light of the District Attorney’s right to confidentiality, both during the disciplinary proceeding and after it is resolved in his/her favor, the judge may not disclose that he/she filed a complaint, and therefore the disqualification may not be remitted. Thus, unless the District Attorney waives confidentiality or the grievance committee issues a published disciplinary opinion, remittal is not permitted.

 

Conversely, a judge is not necessarily disqualified from presiding over other attorneys in the same public or private law office as the reported attorney, provided the judge is satisfied they were not involved in the purported misconduct and assuming he/she can be fair and impartial.

 

         Thus, if one of these judges reports the district attorney to the grievance committee, that judge must disqualify him/herself from cases in which the district attorney personally appears until two years after the disciplinary proceedings end (see id.). Remittal is not available unless the grievance committee makes the reported misconduct a matter of public record or the district attorney waives confidentiality (see id.). Where, as here, there is no suggestion that any assistant district attorney was involved in the district attorney’s alleged conduct, the reporting judge may preside in cases being prosecuted by assistant district attorneys, provided the judge can be fair and impartial (see id.).


 

3)      If one judge reports the district attorney, must the other judges report?


         If a judge knows that an attorney’s misconduct has already been reported to the grievance committee, he/she need not also report it (see e.g. Opinions 16-39; 15-180).


         Thus, even if a judge here concludes that reporting is mandatory, he/she need not report the alleged misconduct if he/she is assured that someone else (including, but not limited to, a lawyer, another judge, or a member of the public), has already reported or self-reported the incident to the grievance committee.



4)      Must the part-time justice who also serves as court attorney to the county court judge disclose his/her status as a potential witness concerning the district attorney’s possible misconduct?


         If the district attorney’s conduct is likely to come before the county court judge, the part-time justice who also serves as his/her court attorney should disclose his/her status as a potential witness to the judge. This will allow the county court judge to insulate him/her from the case and disclose the insulation.5 To minimize any possible appearance of impropriety, the part-time justice/court attorney should also make reasonable efforts not to discuss the case privately with the county court judge, other than to disclose he/she might be called as a witness.



5)      May the county court judge preside in the case if various county court personnel, including the judge’s court attorney, may be called as witnesses?


         Assuming defense counsel files a motion based on the district attorney’s alleged conversation with the defendant, the county court judge must consider if he/she can be fair and impartial and if his/her continued involvement would create an appearance of impropriety, given that several court employees are potential witnesses.


         In the present case, several county court employees, including the county court judge’s court attorney, could be called to testify about the conversation between the district attorney and the defendant. These potential witnesses do not appear to have a stake in the outcome of the dispute; indeed, on the facts presented, it is unclear which side would wish to call them.


         As always, if the judge cannot be fair and impartial, or concludes there will be an appearance of impropriety if he/she presides, then he/she must disqualify him/herself.


         Otherwise, provided the judge insulates these court employees from the case, discloses the insulation, and determines that he/she can be fair and impartial, we believe the judge’s impartiality cannot “reasonably be questioned” and therefore may continue to preside (22 NYCRR 100.3[E][1]). If a party objects to the judge’s continued participation in the case, the decision to recuse or not remains within the judge’s discretion after considering the particular circumstances, including any administrative complications from insulating court personnel (People v Moreno, 70 NY2d 403 [1987]).

 

         Accordingly, the county court judge may preside if he/she concludes he/she can be fair and impartial, but must then (a) insulate court personnel who are potential witnesses from the case and disclose the insulation to the parties; (b) instruct the insulated court personnel not to discuss the case with him/her outside the presence of the parties or their attorneys; and (c) disclose any substantive ex parte communications he/she may have received from them.6 The judge may, of course, consult with an administrative judge about the matter, and we would especially suggest this if the judge finds it difficult to insulate his/her court personnel appropriately or otherwise encounters difficulties implementing our recommendations. We also note the county court judge may ask us for further guidance as circumstances unfold.



6)      What are the county court judge’s obligations if his/her court attorney reports the district attorney to the grievance committee?


         If the county court judge’s court attorney reports the district attorney, the county court judge must insulate the court attorney from all cases in which the district attorney personally appears (cf. Opinion 16-146). This insulation is not subject to waiver, unless the grievance committee makes the misconduct a matter of public record or the district attorney waives confidentiality (cf. id.). However, the judge need not insulate the court attorney from matters involving assistant district attorneys (cf. id.).



7)      Must a judge who personally observed the conversation in the justice court make any disclosure to defense counsel?

 

         If a judge is subpoenaed to testify, he/she “is no different from any other witness and enjoys all of the rights, duties and obligations as set forth in CPLR Article 23" (Opinion 88-155). Otherwise, judges who are potential fact witnesses generally have no ethical obligation to volunteer information to either side about what they heard or observed. Nonetheless, a judge may serve voluntarily as a fact witness (see e.g. Opinions 10-118; 01-25; 95-148). Here, we conclude the justices may, if they wish, share their objective factual observations with either or both counsel in the case before the county court judge, as they will be completely insulated from any other involvement with the case.


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1 Although we assume that the county court judge is already insulating his/her court attorney from all cases that originate in the justice court during his/her term as a justice of that court (see Opinion 16-162), we nonetheless discuss insulation requirements herein for completeness.


2 Indeed, one inquirer affirmatively says he/she heard the district attorney and defendant discussing a topic unrelated to the defendant’s case.

 

3 Determination of whether the “substantial likelihood” prong is met involves an assessment of the information’s reliability, which is especially important where the information is based on hearsay, speculation, or the like (see e.g. Opinion 15-138/15-144/15-166).


4 We say “at this time” because the county court judge may potentially receive information over the course of the proceeding that convinces him/her that he/she has substantial knowledge of a substantial violation by the district attorney. If so, we again note that what constitutes “appropriate action” is ordinarily within the judge’s discretion (see e.g. Opinion 15-231). Moreover, the judge may, in his/her discretion, wait until the proceeding ends to take any such action (see id.).


5 As stated in footnote 1, we assume that the county court judge is already insulating his/her court attorney from all cases that originate in the justice court during his/her term as a justice of that court (see Opinion 16-162). Thus, the county court judge will be insulating his/her court attorney for two reasons, and should disclose both reasons.


6 Although a judge ordinarily may “consult with court personnel whose function is to aid the judge in carrying out the judge’s adjudicative responsibilities” (22 NYCRR 100.3[B][6][c]), we note that these court personnel must be insulated from the case due to their status as potential witnesses.