Opinion 25-43
March 27, 2025
Digest: (1) Where a judge presiding in
a matter concludes that a part-time attorney-justice inadvertently arraigned his/her
own client after being assigned as counsel but before ever meeting or speaking with
him/her, the presiding judge is in the best position to assess if there is a
“substantial likelihood” that the attorney-justice committed a “substantial
violation” of the applicable disciplinary rules and, if so, what constitutes
“appropriate action” under the circumstances.
(2) If the inquiring judge believes it would be helpful to prevent similar
occurrences in the future, he/she may notify an appropriate administrative or
supervising judge.
Rules: Judiciary Law §§ 16-17; 22 NYCRR 100.2; 100.2(A); 100.3(D)(1)-(2); 100.6(B)(2); Opinions 23-243; 23-239; 22-166; 22-164; 22-153; 13-69; 13-54.
Opinion:
The inquiring judge assigned a part-time attorney-justice to represent a litigant in a matter, and thereafter issued a bench warrant for that litigant. When the litigant was returned on the warrant after hours, however, the attorney-justice presided over the litigant’s return on warrant and set bail. At that time, the attorney-justice had not yet met or spoken with the litigant. When the matter came back before the inquiring judge, the attorney-justice acknowledged the conflict, took responsibility for the mistake, and asked to be relieved as counsel. The inquiring judge granted the application and assigned new counsel. The inquiring judge does not believe the misstep was intentional and believes the attorney-justice will be more vigilant in the future. The judge asks if it is necessary to report the attorney-justice to either the Commission on Judicial Conduct or the attorney disciplinary committee.[1]
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge who receives information indicating a “substantial likelihood” that an attorney or another judge has committed a “substantial violation” of the applicable disciplinary rules must take “appropriate action” (see 22 NYCRR 100.3[D][1]-[2]).
Overview of Standards
In general, a judge has discretion to determine whether in a particular case there is a “substantial likelihood” an attorney or another judge has committed a “substantial violation” of the applicable disciplinary rules based on all the facts and circumstances known to the judge (see e.g. Opinions 23-243; 22-164; 22-153). The judge need not undertake any investigation of the alleged misconduct (see Opinion 23-239). However, if the judge concludes the two-prong test is met, i.e. that there is a substantial likelihood that the attorney or other judge has committed a substantial violation of such rules, the judge must take “appropriate action” (see e.g. Opinions 23-243; 22-164; 22-153).
Because “appropriate action” depends on the circumstances of each case, it is ordinarily left to the inquiring judge’s discretion to determine what measures to take. As summarized in Opinion 13-69 (citations omitted):
If a judge concludes that another judge or lawyer has engaged in a substantial violation of the Rules, the action the judge must take will depend on the nature of the misconduct. For example, if the misconduct is so serious that it calls into question a judge’s fitness to continue in office, or an attorney’s honesty, trustworthiness or fitness as a lawyer, the judge must report the conduct to the appropriate disciplinary authority. However, if the conduct is not so serious, the judge has the discretion to take some other, less severe action than reporting the conduct to a disciplinary authority. And, if the conduct is an insubstantial or technical violation, it is within the judge’s discretion to take or not take some appropriate action.
Discussion
Here, the inquiring judge has concluded that the attorney-justice erred in presiding over his/her client’s arraignment and needed to be relieved as counsel (see e.g. Opinion 13-54; 22 NYCRR 100.6[B][2]; Judiciary Law §§ 16-17).
Still, while a part-time attorney judge “must adopt reasonable procedures” to avoid conflicts (see e.g. Opinions 22-166; 13-54), we have also recognized that “even where a judge has adopted such reasonable procedures, there may be times when a judge has nonetheless inadvertently presided over a matter where recusal would have been appropriate” (Opinion 22-166; see also Opinion 13-54).
This line of opinions is relevant here because the inquiring judge has also concluded the attorney-justice did not know or realize that the defendant he/she was arraigning was a client, and thus inadvertently arraigned a client after being assigned as counsel but before ever meeting or speaking with him/her. Once the conflict came to light, the attorney-justice “immediately took accountability” and the inquiring judge was able to relieve him/her as counsel and appoint a new attorney without delay.
Thus, on the facts presented, we conclude the inquiring judge is in the best position to assess whether the two-prong test is met. If so, the judge must take “appropriate action.” We note in this regard that this judge has already taken some action, by relieving the attorney-justice as counsel.
Reporting is not mandated unless the inquiring judge determines the two-prong test is met and further concludes that the alleged misconduct seriously calls into question the attorney-justice’s honesty, trustworthiness, or professional fitness (see e.g. Opinions 23-243; 22-164).
Additional Matters
As a reminder, if the inquiring judge ultimately reports the attorney-justice to the grievance committee and/or the Commission on Judicial Conduct, the judge must disqualify in all matters where the attorney-justice appears, both while the disciplinary matter is pending and for two years thereafter, and remittal is not available (see Opinion 23-243).
For completeness, we note that, if the inquiring judge believes it would be helpful to prevent similar occurrences in the future, he/she may notify an appropriate administrative or supervising judge of the incident.
[1] We note there is nothing unusual about assigning counsel, issuing a bench warrant, or bringing in a defendant to be arraigned before a local part-time judge if the warrant is executed after hours. Here, unfortunately, the assigned counsel and the arraigning part-time judge were the same person.