March 29, 2018
Digest: A judge need not take any action against an attorney who was the defendant in an uncontested action for annulment based on fraud, where the attorney’s admissions do not suggest the attorney engaged in illegal or unethical conduct.
Rules: 22 NYCRR 100.3(D)(2); Opinions 15-183; 14-88; 08-198.
The inquiring judge asks if he/she must report an attorney who was the defendant in an uncontested action for annulment based on fraud. The defendant attorney said under oath, “I admit the allegations in the Verified Complaint. I hereby consent to this action being placed on the uncontested calendar.” However, the complaint’s factual allegations are general and pro forma in nature; they do not suggest a possible standalone tort or crime or even any clearly unethical conduct by the defendant.
A judge who receives information indicating a “substantial likelihood” that a lawyer committed a “substantial violation” of the Rules of Professional Conduct must take “appropriate action” (22 NYCRR 100.3[D]).
Ordinarily, it is for the judge to determine if there is a “substantial likelihood” that an attorney committed a “substantial violation” of the Rules of Professional Conduct, based on all the facts and circumstances already known to the judge (see e.g. Opinions 15-183; 14-88; 08-198).
Here, however, on review of the materials provided, we conclude the “substantial likelihood” prong is not met. Thus, the judge has no ethical obligation to act under Section 100.3(D)(2). We note the attorney defendant, while not contesting the ground for the annulment, did not admit any fraud or other illegal or unethical conduct. Finally, the case ended, and the judge need do nothing more (see e.g. Opinion 14-88).