-Opinion: 98-65
October 22, 1998
Digest:    Under the circumstances presented, the Committee declines to issue an opinion reviewing a judge's determination that an attorney did not violate the Code of Professional Responsibility.

Rule:       22 NYCRR 100.3(D)(1) and (2);
               Opinions 97-84 (Vol. IV);
               89-75 (Vol. IV); 89-54 (Vol. III).


            In a criminal trial presided over by the inquiring judge, who is a Supreme Court justice, a police officer admitted having made erroneous representations in an affidavit and gave an explanation of how that had occurred. As a result of that testimony, the judge forwarded a copy of the minutes to the District Attorney "because of the allegation of questionable conduct on the part of an Assistant District Attorney in your office." The judge stated that such action was being taken in accordance with the provisions of section 100.3(D)(2) of the Rules Governing Judicial Conduct, which provides that "A judge who receives information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Code of Professional Responsibility shall take appropriate action." In the letter to this Committee, dated the same day, the judge included a copy of the transcript and the letter to the District Attorney, stating "The foregoing is the action I have taken so far, based upon the rules, as I understand them. Need I do more?"

            Thereafter, the judge informed the Committee that the matter had been investigated by the Integrity Bureau of the District Attorney's Office and a detailed report prepared, which the judge forwarded to the Committee.

            Having reviewed the report, the judge now states:

. . . I believe that there is not a substantial likelihood
that in fact, the violation had been committed. It is
my considered opinion that in all likelihood, there
was a miscommunication between the parties.

I would appreciate the Committee taking into
consideration my observation and advising me,
whether given all of the material now in your
possession, your Committee feels that I am
accurate in my assessment of this matter.

            The Committee must decline to issue an opinion whether the judge is correct in the assessment that there "is not a substantial likelihood that in fact the violation had been committed." It is simply not appropriate in the situation presented, for the Committee to act, in effect, as an appellate court reviewing the "record" for the purpose of "affirming" or "reversing" the judge's determination.

            We do note, however, that the inquirer is a Supreme Court justice, trying criminal cases, who, after having conscientiously weighed the matter, arrived at a considered judgment that a violation of the Code of Professional Conduct did not take place. The Committee has no basis or reason for second-guessing that judgment.

            It is, as the Committee has said in the past, the responsibility of the judge to reach a determination whether there is a substantial likelihood that an attorney has committed a substantial violation of the Code of Professional Responsibility, or that a judge has committed a substantial violation of the Rules Governing Judicial Conduct. 22 NYCRR 100.3 (D)(1) and (2); Opinions 97-84; 89-75 (Vol. IV); 89-54 (Vol. III). The judge, in this instance, has made such a determination based upon a review of the transcript and of the District Attorney's detailed report of the investigation brought about by the judge. Under such circumstances, there is no ground for this Committee to express an opinion retroactively ratifying or discrediting that determination.