September 12, 2019
Digest: Under the circumstances presented, the inquiring judges must take action with respect to an attorney’s alleged misconduct, but what action is appropriate is left to their sole discretion.
Rules: 22 NYCRR 100.2(A); 100.3(D)(2); part 1200, Rules 1.4(a), 5.3(a), 8.4(c); Opinions 18-165; 18-58; 17-90; 15-138/15-144/15-166; 10-85; 05-105/05-108/05-109.
The inquiring judges have become aware of the following circumstances in the course of their official judicial duties. An attorney commenced litigation on behalf of his/her client. In this litigation, the attorney (a) submitted copies of documents apparently signed by the client, (b) represented that the client was ready, willing and able to proceed with discovery, and (c) sought sanctions against adversaries for their alleged non-cooperation. However, the client had died before the action was commenced, and the documents purportedly signed by the client were notarized and dated “many months” after the client’s death.1 The attorney “was not in contact with the deceased client for some 2 ½ years” and was thus unaware at the time of these actions that the client had died. After investigation, counsel explained that the false notarizations “were the product of a rogue paralegal who had since been discharged.” The judges ask if they must report the attorney regarding the improperly-notarized documents and/or the lengthy period of non-communication to the grievance committee.
A judge must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). If a judge receives information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Rules of Professional Conduct, the judge must take “appropriate action” (22 NYCRR 100.3[D]).
A. “Substantial Likelihood” Prong
As described in Opinion 15-138/15-144/15-166 (citations omitted):
A judge is under no duty to investigate whether allegations of misconduct are true. Moreover, the issue of whether a judge possesses information indicating a substantial likelihood that an attorney has committed a substantial violation of the Rules of Professional Conduct … is typically within the inquiring judge’s discretion. This is because, generally, the inquiring judge is in the best position to evaluate and assess all relevant, known circumstances, including the reliability of the information known to the judge.
Here, we conclude the substantial likelihood prong is met, as it appears the inquiring judges have already concluded they have received reliable knowledge of the circumstances described in the course of their official judicial duties.
B. “Substantial Violation” Prong
Again, as described in Opinion 15-138/15-144/15-166 (citations omitted):
If the judge determines, based on the information he/she has already received, that there is a substantial likelihood of an ethical violation, he/she must also consider whether the violation is “substantial,” under all the circumstances known to the judge.
This aspect, too, must be confined to the judge’s discretion in all but the clearest and most unambiguous cases, because the inquiring judge is in the best position to evaluate and assess all relevant, known circumstances. In determining whether a violation is “substantial,” the judge may again consider a wide variety of factors, including (among many others) the experience level of the attorney or judge, whether the violation appears to have been inadvertent or willful, whether it appears to be part of a larger pattern of improper behavior or an isolated incident, whether it reflects adversely on the individual’s honesty, trustworthiness, and fitness as a lawyer or judge, and whether the violation, if it occurred as described, is likely to undermine public confidence in lawyers or judges if not investigated and addressed.
We have recognized “a judge’s disciplinary responsibility applies not only to misfeasance, malfeasance and nonfeasance by an attorney, but also to an attorney’s competence” (Opinion 18-58). Here, the alleged misconduct may potentially violate 22 NYCRR part 1200, Rules 1.4(a) (lawyer must “promptly inform” client of material developments and “reasonably consult with the client about the means” of pursuing the client’s objectives), 5.3(a) (lawyer and law firm must “adequately supervise” nonlawyers’ work), and 8.4(c) (lawyer and law firm must not “engage in conduct involving dishonesty, fraud, deceit or misrepresentation”). Further, as the alleged misconduct involves both improper notarization and false representations to a court and litigation opponents due either to very extreme carelessness or a deliberate deception, we believe the present inquiry describes a substantial violation (see Opinions 17-90; 10-85).
C. “Appropriate Action”
As described in Opinion 15-138/15-144/15-166 (citations omitted):
If the judge determines, based on the information he/she has already received, that both prongs are satisfied (i.e., that there is a substantial likelihood of a substantial violation of the applicable ethics rules), the judge must take “appropriate action,” as indicated by all the surrounding circumstances known to the judge at the time.
In the vast majority of instances, even after the judge decides it necessary to take “appropriate action,” the issue of what action is “appropriate” under the circumstances is nevertheless within the judge’s discretion.
Reporting to a disciplinary body is not mandatory unless the conduct at issue seriously calls into question a lawyer’s or judge’s honesty, trustworthiness or professional fitness, thus warranting, at the very least, an inquiry by the appropriate disciplinary body.
Here, as both prongs are met, the inquiring judges must take “appropriate action.” The only remaining question is what action is appropriate under the circumstances – that is, whether reporting is ethically mandated or whether the matter should it be left to the judges’ discretion. Two prior opinions provide guidance here.
We addressed improper notarization in Opinion 10-85, where “an attorney admitted to a judge that he/she improperly notarized his/her client’s signature, purportedly as a matter of convenience.” However, the inquiry revealed “no evidence that the attorney did so for any other reason or on any other occasion,” and, of course, the judge had no duty to investigate (id.). Ultimately, we concluded in Opinion 10-85 that the inquiring judge must do something, but we left the decision about what action was appropriate to the judge’s discretion (id. [some citations omitted]):
Accordingly, it appears in this inquiry that there is a substantial likelihood that the attorney has committed a substantial violation of the Rules Governing Professional Conduct and, therefore, the judge must take “appropriate action” (22 NYCRR 100.3[D]). However, based on all the surrounding circumstances, the judge must determine whether the attorney’s conduct seriously calls into question the attorney’s honesty, trustworthiness or fitness as a lawyer. As an interim measure, the judge may interview the attorney and caution him/her, and may take into consideration how the attorney responds during this interview, in addition to other factors, including any made evident during that conversation. Ultimately, the judge must exercise his/her discretion to determine the appropriate action to take.
More recently, we addressed falsification of court documents by a law firm’s paralegal (see Opinion 17-90). In that case, the judge learned that:
[the] law firm altered an order of protection … issued against their client. At a hearing on the issue, a partner stated the client asked a paralegal to fill out a “form” requested by the police so he/she could access his/her belongings. Without ever looking at the document, the associate handling the case told the paralegal to fill out the “form”. Since the “form” was, in fact, the judge’s order of protection, the paralegal then altered the order by handwriting a clause allowing the client access. The partner acknowledged the seriousness of the misconduct and has revised firm procedures to prevent any recurrence.
As in Opinion 10-85, we concluded that the two-prong test was met and thus the judge must take appropriate action (see 22 NYCRR 100.3[D]). However, we further concluded in Opinion 17-90 that the conduct, if it occurred as described, “implicates the lawyer’s honesty, trustworthiness and fitness to be a lawyer” and therefore must be reported. In particular,
this scenario raises the troubling possibility that … the law firm, through one or more of its employees, deliberately sought to deceive the court, law enforcement, and the individual in whose favor the order of protection was granted, in defiance of court directives, and/or one or more responsible attorneys allowed this situation to occur through extreme carelessness in failing to supervise their subordinates.
Essentially, we opined that the described conduct is “of a kind best sorted out by an independent agency with investigative capability” (Opinion 05-105/05-108/05-109) and thus, reporting is mandatory “if you believe the facts as presented to the Committee are true” (Opinion 17-90).
Here, unlike the extraordinary circumstances in Opinion 17-90, the attorney and his/her law firm did not alter a court order or otherwise defy court directives. The multi-year period of non-communication with the client gives us great pause, and counsel’s representations to the court and to opposing counsel concerning the client at least borders on reckless conduct. Still, nothing in the inquiry clearly reveals any intent by the attorney to deceive, and the inquiring judges have no duty to investigate either the attorney’s mental state or whether the attorney has any prior pattern, practice, or history of client neglect. We believe the inquiring judges are in the best position to assess the attorney’s motivations and receptiveness to guidance about his/her ethical responsibilities going forward (cf. Opinions 18-58 [where two-prong test is met for attorney’s violation of his/her duty of competence, what action is appropriate under the circumstances is ordinarily left to the judge’s discretion; but “if the judge determines the attorney’s condition is egregious and seriously calls into question the attorney’s fitness as a lawyer, the attorney’s condition must be reported to the grievance committee”]; 10-85 [“the judge may interview the attorney and caution him/her, and may take into consideration how the attorney responds during this interview, in addition to other factors, including any made evident during that conversation”]; 18-165 [where supervising judge concludes another judge’s misconduct was “a one-time, isolated incident” and “impress[ed] upon him/her most emphatically that this conduct must never be repeated,” the judge need not take any further action if he/she “is satisfied that these steps have adequately addressed the situation”]).
Thus, we conclude that the inquiring judges must take action with respect to the attorney’s alleged misconduct, but we leave to their sole discretion what action is appropriate under the circumstances. They may, if they consider it appropriate, report the attorney to the grievance committee, but they may instead take other measures such as counseling, reprimanding, admonishing or sanctioning the lawyer for his/her misconduct, and may also “take into consideration how the attorney responds” to such measures in deciding, in their sole discretion, whether those measures are sufficient under the circumstances (see Opinion 10-85).
1 The decedent may have signed blank authorizations at the inception of the representation.