June 18, 2019
You ask if you must take action under 22 NYCRR 100.3(D)(2) upon receiving correspondence from opposing attorneys in a case stating differing views on whether a suspended attorney was wrongly practicing law, a matter on which you’ve no personal knowledge. Also you note the lawyers on one side say they will report the suspended attorney’s alleged improper acts to the grievance committee.
A judge with information about a “substantial likelihood” a lawyer committed a “substantial violation” of the Rules of Professional Conduct must take “appropriate action” (22 NYCRR 100.3[D]). Unless you are satisfied both prongs are met, you need not take any action at all about this alleged misconduct. We earlier advised a judge has no duty to investigate if misconduct allegations are true (see Opinions 17-07; 16-110; 15-183; and 15-119). We have previously said “mere rumor, gossip, innuendo, or other ‘third hand’ information, does not trigger a judge’s disciplinary obligations” (see Opinion 15-138/15-144/15-166).
We have advised even if you believe the conduct should/must be reported, you need not report it if reported earlier (see Opinions 14-162[A]; 13-127; 10-122; and 09-49).
Enclosed for your convenience, are Opinions 17-07;16-110; 15-183; 15-138/15-144/15-166; 15-119; 14-162(A); 13-127; 10-22; and 09-49, which address this issue.
Very truly yours,
George D. Marlow, Assoc Justice
Appellate Div., First Dept. (Ret)
Hon. Margaret T. Walsh
Supreme Court Justice