In most instances, a judge has discretion in determining what to do about an attorney's alleged misconduct under 22 NYCRR 100.3(D)(2).
However, in some exceptional circumstances the Advisory Committee has required reporting to the appropriate grievance committee or provided other directed guidance.
Important Note: All charts and comments reflect staff counsel's understanding and analysis of selected opinions, and do not necessarily reflect the Advisory Committee’s views as expressed in its full, published opinions. Only a written opinion from the Advisory Committee on Judicial Ethics can provide the statutory protection of Judiciary Law § 212(2)(l)(iv). |
General Reminders:
- Reporting is not required if the specific misconduct has already been reported: e.g. Opinions 10-122, 19-48, 14-180, 13-77.
- Judge need not investigate likelihood or seriousness of misconduct.
NAVIGATION: Chart 1 - Reporting is Mandatory | Chart 2 - "Contingent" Mandatory Reporting and/or Guidance for Exercising Discretion | Chart 3 - Need Not Report Attorney | Chart 4 - Disciplinary Decisions (CJC)
CHART 1 - REPORTING IS MANDATORY
In these opinions, each inquirer clearly had information indicating a substantial likelihood of a substantial violation of the attorney ethics rules, based on the facts described.
Before Opinion 10-85, the Advisory Committee’s opinions on 22 NYCRR 100.3(D)(2) often said, without analysis, that if there was a substantial likelihood of a substantial violation, the conduct must be reported. In 10-85, however, the Advisory Committee clarified that when the two-prong test is satisfied, the judge must do something (i.e., take “appropriate action”). But that appropriate action is not necessarily reporting the attorney to the grievance committee in every instance. Rather, it’s only if the two-prong test is met (substantial likelihood of a substantial violation) AND the alleged misconduct is “egregious” in that it seriously calls into question the attorney’s honesty, trustworthiness, or fitness to practice law.
The sole question for the Advisory Committee was thus whether the attorney's misconduct, if true, seriously called into question his/her honesty, trustworthiness, or fitness as a lawyer and, therefore, at the very least, warranted an investigation by the grievance committee.
Opinion | Core Misconduct | Possibly Key Concerns or Factors Warranting an Investigation |
|---|---|---|
Attorney failed to maintain client funds in an escrow account. | Trustworthiness; Fitness as a Lawyer. | |
Attorney made comments that constituted sexual harassment and reflected ethnic and/or religious bias to court personnel and opposing counsel during a court appearance but outside the judge’s presence. | Sexual Harassment; Bias and Prejudice. | |
Attorney disregarded a court directive and engaged in a deliberate deception, intended to perpetrate a fraud and deceive the parties and/or the court. | Defiance of Court Directives; Deliberate Deception of Court and Others; Fraud | |
Attorney sought to compromise a criminal prosecution for personal financial gain. | Obstruction of Administration of Justice; Subversion of Public Interest for Personal Financial Gain | |
On learning that a non-party would only honor a judicial subpoena, attorney signed above the judge’s name and served it on the non-party. | Deliberate Deception of Non-Party or Extraordinary Incompetence Concerning Judicial vs Attorney Role | |
Attorney lied to client and also failed to appear, inducing client’s default. | Deliberate Deception of Client and the Court; Repeated Failure to Appear; Prejudice to Client’s Interests | |
Attorney secretly altered supporting materials for wiretap and ping order after the judge signed the order. | Deliberate Deception of the Court and Others; Insensitivity to Constitutional Rights; Prejudice to Federal Criminal Case | |
Attorney knowingly assisted a client in effectuating a transfer of disputed real estate under false pretenses. | Defiance of Court Directives; Deliberate Deception of County Clerk; Fraud | |
Party attempted to undermine judge’s judicial decision by filing a declaratory judgment action in another court and seeking a default judgment without disclosing related actions, and judge concludes the attorney defendant and their counsel deliberately submitted materially false documents to hinder an unrepresented judgment creditor’s efforts to collect a lawful judgment through fraud/deception. | Deliberate Deception of Court and Unrepresented Judgment Creditor; Possible Fraud | |
Attorney made false statements about the judge under penalty of perjury. | Perjury | |
Attorney made false statements about the judge under penalty of perjury. | Perjury | |
Law firm’s paralegal altered the judge’s order of protection for client’s benefit. | Possibly Deliberate Deception of Court, Law Enforcement, and Protected Party; Defiance of Court Directives. | |
Attorney testified under oath that they used a fictitious bank account to shield their law firm income from court-ordered child support payments. | Elaborate and Deliberate Deception; Willful Evasion of Child Support. | |
Attorney filed a verified complaint swearing that he/she advised the client that the lawsuit was settled, when in fact he/she had discontinued it and paid the purported settlement amount from the attorney’s own, personal funds. | Deception of Client re Settlement Offer. | |
Attorney threatened to file a complaint against the judge and the judge concluded it was an effort to unduly influence the judge’s judicial decision. | Attempt to Unduly Influence Judge | |
Attorney deliberately sought to deceive the court and acted extremely unprofessionally in defiance of court directives (attorney repeatedly missed or arrived hours late for scheduled court appearances and ignored repeated directives to explain and provide support for his/her contradictory excuses for failing to appear). | Deception of Court and Client; Defiance of Court Directives. | |
Attorney admitted perjury under oath. | Perjury. | |
Attorney, as officer of a political party, signed an affidavit containing false accusation for use against judge in election campaign. | Perjury for Political Purposes Multiple Incidents (likely high-profile media coverage) | |
Attorney used position on town board to try to unduly influence town justice’s decisions and acted extremely unprofessionally. | Attempt to Unduly Influence Judge | |
Attorney’s former matrimonial client claims in writing they received harassing communications from attorney and that there was sexual activity between them. | Harassing and Inappropriate Conduct in Attorney-Client Relationship. | |
Plaintiff claims eight months after trial that his/her attorney never informed plaintiff of a substantial settlement offer. | Non-Communication of Settlement Offer. |
CHART 2 - "CONTINGENT" MANDATORY REPORTING
Examples of opinions where the Advisory Committee provided guidance that reporting was required if the inquiring judge determined that a particular condition was met.
Opinion | Core Misconduct | Condition Making Reporting Mandatory | Condition Making Reporting Optional |
|---|---|---|---|
Attorney persists in sending emails to court and opposing counsel about case, despite a court order disqualifying the attorney due to an ethical conflict under the Rules of Professional Conduct. | Judge determines that the misconduct seriously calls into question the attorney’s honesty, trustworthiness, or fitness as a lawyer. | Judge determines the misconduct does not reach that level of egregiousness. | |
Law firm’s former paralegal forged judge’s signature on judgment and pretended it had been appropriately filed, and judge has serious concerns about the firm’s supervision of and reliance on the paralegal. | Judge concludes (a) the law firm, through one or more of its employees, deliberately sought to deceive the court, opposing counsel, and the clerk’s office and/or (b) one or more responsible attorneys allowed this situation to occur through extreme carelessness in failing to supervise their subordinates. | [Judge concludes the attorney’s likely level of culpability does not reach that level.] | |
Attorney manifests extremely rude, malicious, and belligerent behavior toward judges and attorneys, including stalking and threatening judges and filing numerous baseless complaints and lawsuits. [FN1] | Direct personal knowledge of attorney’s extremely rude, malicious, and belligerent behavior that raises serious concerns about the attorney’s fitness to practice law. | [Second-hand knowledge; or first-hand knowledge only of lesser misconduct.] | |
Attorney apparently unable to discharge basic fiduciary duties after court order and one-on-one guidance; is admittedly struggling to keep up; is disorganized and occasionally distraught. | Judge determines that the attorney’s condition is egregious and seriously calls into question the attorney’s fitness as a lawyer. [FN2] | [Judge determines that the condition does not meet that level and is satisfied that suspending the attorney’s fiduciary appointment, giving guidance and direction to the attorney, consulting with the lawyer assistance committee, and suggesting the attorney seek assistance from a lawyer assistance committee to rectify his/her apparent problematic condition was adequate.] | |
Recruiting director of law firm that has several cases before the judge called chambers to let the judge know the firm is “looking for senior level attorneys” because the judge’s term is ending. | Judge concludes law firm was attempting to unduly influence the judge’s judicial decisions. | Judge concludes law firm was not attempting to unduly influence the judge’s judicial decisions. (Note: This was the inquirer's expressed belief as described in the inquiry.) | |
Attorney apparently failed to comply with Judiciary Law 468-a registration requirements. | Attorney fails to demonstrate compliance with Judiciary Law §468-a, on being afforded an opportunity to do so. | Attorney demonstrates that he/she filed the mandatory registration statement and/or paid the prescribed fee. | |
Attorneys altered a copy of settlement stipulation that had been signed by the judge. | Judge concludes that the attorneys involved engaged in a deliberate deception intended to perpetrate a fraud and deceive the parties and/or the court as to whether the additional language was now an order of the court. | Judge concludes the conduct, though improper, was not intended to deceive the parties and/or the court. |
[FN1] Although not fully detailed in the opinion, the conduct in Opinion 19-35 was indeed extreme. For example, the stalking resulted in a police presence at a judge’s home. Return to Chart
[FN2] In Opinion 18-58, the Advisory Committee again emphasized the judge need not conduct any investigation, but “should assess all the known facts, including but not limited to the judge's impression of whether this is a single anomalous situation or an ongoing prevailing condition.” Return to Chart
Note: In Opinion 18-170, the Committee declined to determine whether a prosecutor’s failure to disclose something was a violation (let alone a substantial violation) of the Rules of Professional Conduct. But even if it was a substantial violation, the Committee noted, reporting “is required only if the judge concludes the prosecutor’s failure to disclose is essentially a fraud on the court or other willfully deceptive conduct, calling into question the prosecutor’s honesty, trustworthiness, or fitness to practice law.”
CHART 3 - NEED NOT REPORT ATTORNEY
Examples of opinions in which the Advisory Committee has said affirmatively reporting is not required, either because one or both prongs are not satisfied or because the actions already taken were sufficient.
(After Opinion 10-85, when both prongs are satisfied but reporting is not required, that necessarily implies that the misconduct, though substantial in nature, is not egregious.)
Opinion | Issue | Additional Comment or Explanation |
|---|---|---|
Law firm's website advertises its experience appearing before particular judges, and hosts individual biographical pages for those judges on its own website in a format that combines the judges' information with the solicitation of business. | Judge must request in writing that the firm take down these biographical pages and remove the associated links, but "any exercise of the judge's disciplinary functions is left to the judge's sole discretion." | |
A judge has no disciplinary obligation with respect to an attorney for a non-party who honored a purported judicial subpoena. | "Here, as described in the inquiry, it seems that Attorney C received and honored an apparently valid judicial subpoena after having requested one. We note that the inquiring judge does not identify any authority that would affirmatively require an attorney to investigate the validity of a judicial subpoena, solely because the subpoena was signed outside of regular business hours. Accordingly, we can see no basis for the inquiring judge to take any disciplinary action against Attorney C." | |
Judge learned that defendants, who are themselves attorneys, made impermissible contacts with plaintiff. | First prong not met where there is no personal knowledge of the alleged misconduct; judge has discretion to report. | |
Digest: After a judge admonished an attorney on the record for an inappropriate attempt at humor referencing their own client’s ethnicity or national origin, the judge has discretion to take further action, but is not required to do so. [FN3] | The inquiring judge has already taken action in response to the misconduct, having admonished the attorney on the record that the remark was inappropriate. We conclude that the judge has full discretion to take, or not take, any further action (see e.g. Opinion 21-78). | |
Judge became aware of reports of off-duty misconduct posted online concerning another judge's principal law clerk. | Judge has no personal knowledge of the alleged attorney misconduct, so the "substantial likelihood" prong is not met. | |
Judge learned of possible misconduct of plaintiff’s counsel in motion filed by defendant. | No need to report where judge has no firsthand knowledge of alleged facts; first prong not met. | |
Digest: Where a judge reported to court administrators that a part-time attorney judge inappropriately appeared as a prosecutor, and was advised that the District Administrative Judge has addressed the matter, the judge need not take any further action. | ||
Judge received letter which alleges "fairly specific examples" of alleged misconduct by the District Attorney’s office, but does not identify specific defendants or cases. | Judge has no first-hand knowledge of the alleged misconduct and does not recognize any specific cases. | |
District Attorney declined to advise the judge of which matters the judge’s law clerk’s second-degree relative is involved with. | [Implied, but not stated: The DA has no obligation to advise the judge about the DA's internal staffing decisions.] [FN4] | |
Judge observed prosecutor speaking with defendant, but has no idea what they discussed. | Rule 4.2(a) says "a lawyer shall not communicate or cause another to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the other lawyer or is authorized to do so by law." | |
A self-represented non-attorney defendant sought permission to file a joint memorandum of law with a co-defendant who is appearing by counsel; in making this request, the non-attorney averred that he/she has “occasionally drafted” memoranda of law for the co-defendant. | Judge merely suspects misconduct based on an email from a non-attorney defendant, but has no actual knowledge of attorney misconduct. | |
Attorney who was the defendant in an uncontested action for annulment based on fraud, but the attorney’s admissions do not suggest the attorney engaged in illegal or unethical conduct. | ||
Attorney may have revealed the surname of a judge who is being investigated by the Commission, as the name of a file that is listed in small print on an email printout that is attached to the attorney’s affirmation of unavailability. | It is unclear on the facts presented if the attorney was aware of the Commission’s confidentiality rules or even realized his/her email might reveal the respondent’s name, since the subpoena did not facially identify the respondent. Nothing here suggests it was inherently unreasonable for the lawyer to attach the subpoena to an email asking his/her adversary for a new date, and then to annex the email and attachment to his/her affirmation of unavailability. | |
Defense counsel advised the prosecutor and judge, off-the-record, that a court-certified interpreter, a licensed attorney, went beyond mere translation and gave the defendant legal advice. | Judge has no direct knowledge at all of any details of the attorney’s alleged misconduct. | |
Litigant briefly alluded to alleged, unspecified sexual misconduct by his/her former counsel, in open court and in the attorney’s absence. | Judge has no direct personal knowledge whatsoever about any details of the purported misconduct of the attorney. | |
Judge learned confidentially from another judge that a part-time prosecutor is also engaged in private defense work. | "Here, you have no first-hand knowledge this attorney is doing defense work, and you have no duty to investigate it. Accordingly, the "substantial likelihood" prong does not appear to be met and you have no duty whatsoever to act under Section 100.3(D)(2)." | |
Attorney briefly spoke to a non-party witness about subpoenaed materials during a recess in the midst of a hearing. | The facts presented do not necessarily constitute attorney misconduct, absent a court directive or ethical rule requiring the attorneys to refrain from speaking to a non-party witness during a recess. | |
Judge received a secondhand report of a casually overheard and possibly privileged conversation and has jumped to the unsupported conclusion that the attorney was, despite his/her actual overheard words, somehow encouraging his/her client to engage in intimidation, threats, or coercion. | "Critically, ... the [protective] order does not prohibit the attorney’s client from speaking with the individual who obtained the order. Nor does the overheard conversation suggest that the attorney was attempting to influence the victim’s testimony or conduct; to the contrary, the attorney expressly advised that “[the victim] shouldn’t change” her statement. " | |
Court clerks said they overheard the co judge engaging in ex parte, off-the-record communications with a prosecutor and his/her witness, advising them how to present certain evidence at the next phase of the case. | Judge's information "is oral hearsay – raising the question of its accuracy and reliability – and the judge who allegedly engaged in the conduct is a relative newcomer to the bench." | |
Attorney defendant agreed to an adjournment in contemplation of dismissal of neglect charges against the attorney. | Judge has no personal knowledge of the underlying circumstances, and, at this stage, it appears these neglect charges are unproven. | |
Attorney appearing on behalf of a client revealed to the judge that he/she is under indictment. | Judge has no personal knowledge of the underlying circumstances. | |
Judge believes an attorney "has an alcohol abuse problem," and judge has already "spoken to the attorney and ... also contacted the Lawyer Assistance Program for advice." | Based on these facts, the Committee does not conclude that the attorney’s conduct is, at this point, so egregious that further action, such as reporting the attorney to the disciplinary committee, is warranted. | |
Attorney litigant refused to make potentially incriminating statements at trial. | Judge has no personal knowledge of the alleged misconduct and the inquiry reveals little, if any, corroborating evidence. | |
Attorney publicly disclosed that his/her client, who is charged with a crime, made false statements in an affidavit in support of a motion the client filed pro se and that the client is likely to do so again, but did not identify the allegedly false statements. | Judge does not know the substance of the alleged false statements or that the attorney’s allegation is true. | |
Judge received information about possible criminal activities by an attorney whose identity is unknown to the judge. | "[J]udge lacks any first-hand knowledge of the circumstances of the suspected criminal activities. In fact, the judge does not know the names of the individuals in question." | |
Judge sanctioned attorney for unintentional ethics violation. | "The inquirer’s holding that the attorney involved did not knowingly or intentionally violate the rule could provide a sufficient basis to conclude that the lawyer did not commit a substantial violation ... which involved the lawyer’s honesty, trustworthiness or fitness as a lawyer." |
[FN3] Opinion 22-49 involved a court appearance before the inquiring judge, where one party and their Spanish-language interpreter failed to appear. That party’s attorney remarked that their client’s absence created a “Mexican standoff,” in what the judge describes as “a failed attempt at humor” that may have been inspired by the client’s ethnicity or national origin. In response, the judge “admonished the attorney on the record that such language was ‘not appropriate’” (cf. 22 NYCRR 100.3[B][5] [“A judge shall require lawyers in proceedings before the judge to refrain from manifesting, by words or conduct, bias or prejudice based upon ... race, creed, color, [or] national origin..., against parties, witnesses, counsel or others.”]). The inquiring judge asked if they were ethically required to “take a further step, such as asking the attorney whether [the attorney] should consider withdrawing from the representation.” Return to Chart
[FN4] In Opinion 20-26, the DA's alleged failure to keep the judge apprised of the DA's staffing decisions ultimately had no particular ethical impact on the judge, in light of the Committee's advice that "the judge may permit the law clerk to participate in the proceeding without disclosure or insulation, unless and until the judge learns that the law clerk’s relative is, in fact, participating in the proceeding." Return to Chart
[FN5] The judge in Opinion 17-06 had already taken the following measures: (i) advised counsel "the interpreter would no longer be used in the action" and that the judge "would entertain any legal application counsel might deem appropriate;" (ii) advised the interpreter of the complaint and reminded them of "the narrow scope of the duties of an interpreter;" and (iii) "notified a more senior judge of the incident." Return to Chart
CHART 4 - DISCIPLINARY DECISIONS (NYS Commission on Judicial Conduct)
Important Note: The Advisory Committee's sole mission is to help judges comply with the Rules Governing Judicial Conduct. It has absolutely no disciplinary or investigative functions and cannot comment on past conduct.
The following citation was found by searching the public website of the Commission on Judicial Conduct. It is offered as a courtesy in case it may be of interest.
Citation | Quick Recap | Sanction | Discussion (quoted from opinion) |
|---|---|---|---|
Holzman, 2013 Ann Rep at 175 | Respondent knew in 2006 that attorney had been accused of taking unauthorized legal fees and the FBI was investigating him, and disbelieved the attorney’s explanation. | Censure | "As the referee found, with the knowledge respondent had in 2006 that Michael Lippman, his appointee as counsel to the public administrator, had committed acts that 'strongly pointed to larcenous conduct' and had 'overcharged estates, cheated the PA's office, lied to him and breached his trust' (Rep. 42,44), the appropriate action for respondent, under Rule 100.3(D)(2), was to fire Mr. Lippman and report him to disciplinary and law enforcement authorities. Instead, respondent failed to report Mr. Lippman's misconduct and permitted him to remain in a position of public trust for three years under an ill-conceived plan to repay the unauthorized monies he had collected, thereby putting the estates under his care at further risk and conveying the appearance of favoritism. Respondent's abdication of his ethical responsibilities, which was influenced by his long and close professional relationship with Mr. Lippman, constitutes serious misconduct." |
The Commission explained the standard for mandatory reporting as follows (pp. 191-192):
While it is generally within a judge's discretion, after assessing all the relevant, known circumstances, to determine what "'appropriate action" is required by Rule 100.3(D)(2), the Advisory Committee on Judicial Ethics has held that a judge must report a lawyer's alleged misconduct to a disciplinary authority when "the alleged substantial misconduct rose to such an egregious level that it seriously called into question the attorney's honesty, trustworthiness or fitness as a lawyer" (Adv Op 10-85; see also Op 07-129). The purpose of the reporting requirement "is not to punish attorneys for the slightest deviation from perfection, but to protect the public from attorneys who are unfit to practice law" (Adv Op 10-85, as amended 12/9/11). We agree with the Referee that under the circumstances presented, "the probability and egregiousness of substantial misconduct by Mr. Lippman was so high that it seriously called into question Mr. Lippman's honesty, trustworthiness and fitness to practice law" and thus, in order to protect the estates in his court, respondent had a duty to terminate Mr. Lippman's employment and report him to the disciplinary committee (Rep. 42).
Note: The Commission went further than the Advisory Committee has ever gone: “The information in respondent's possession in 2006 also strongly pointed to larcenous conduct on the part of Mr. Lippman. Respondent was aware that law enforcement entities were investigating the PA's office and had performed audits of the office. He had a duty to share the information he had with law enforcement authorities.” (p. 187, ¶ 27).
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