From Advisory Committee on Judicial Ethics: Opinion 07-129 (Sept. 6, 2007)

[Originally published in NYPRR May 2008]

From time to time, NYPRR will publish an Opinion of the Advisory Committee on Judicial Ethics. The Opinions published are those selected by Justice George D. Marlow, Committee Chair, and Jeremy R. Feinberg, who serves among the Committee’s Counsel. Permission to reprint the Opinion below was requested by NYPRR because of its significance to New York lawyers who appear before the Courts.

The Advisory Committee on Judicial Ethics (www.nycourts.gov/ip/acje ) responds to written inquiries from New York State’s full- and part-time judges, candidates for elective judicial office, and quasi-judicial officials such as support magistrates, court attorney-referees, and judicial hearing officers. The committee’s opinions interpret the Rules Governing Judicial Conduct [22 NYCRR Part 100], the Code of Judicial Conduct and Part 36 of the Rules of the Chief Judge [22 NYCRR Part 36]. Justice George D. Marlow chairs the committee of 26 judges, and Maryrita Dobiel, Esq. is its Chief Counsel.

Opinion 07-129 (Sept. 6, 2007)

DIGEST: Where an attorney has admitted under oath that he/she committed perjury, the judge should report the attorney to the appropriate attorney disciplinary committee.

RULES: 22 NYCRR 100.3(D)(2); Opinions 06-99; 06-24; 05-84; 05-37; 04-74; 02-129; 02-85; 00-64; 98-95 (Vol. XVII); 91-114 (Vol. VIII); 89-74 (Vol. IV); 89-54 (Vol. III); Joint Opinion 88-85 and 88-103 (Vol. III).

OPINION: The inquiring judge presided over a hearing on a petition Lawyer A filed against Lawyer B, to dissolve a professional corporation. Although the parties ultimately agreed to settle the matter, the judge heard testimony during an evidentiary hearing where Lawyer B testified under oath that he/she committed perjury when executing certain tax documents. Based on the limited testimony offered during the hearing, the judge also believes that Lawyer B failed to file personal income tax returns for two tax filing years. Lawyer B also alleged in his/her pleadings that Lawyer A used the firm’s corporate credit card for personal items and withdrew all of the funds from the firm’s joint bank account.

The judge asks the following questions:

(a) Since I have not made a decision based on the incomplete hearing, and the hearing terminated by reason of settlement without having all of the possible testimony or evidence, may I properly form a conclusion as to whether there is a “substantial likelihood” of a substantial violation of the Code of Professional Responsibility by either Lawyer A or Lawyer B?

(b) If it is appropriate to form a conclusion that there is a “substantial likelihood” of a substantial Code violation by either Lawyer A or Lawyer B, is it appropriate to take action by report to the [appropriate attorney disciplinary committee] and to that Committee only?

(c) In the event that it is appropriate to report the situation to the [appropriate attorney disciplinary committee], should that report explain the circumstances or should it simply call the Committee’s attention to potential Code violations in connection with the practice of Lawyers A and B?

(d) In the event that it is appropriate to report the situation to the [appropriate attorney disciplinary committee], it is [sic] to limit the report to Lawyer B only?

Section 100.3(D)(2) of the Rules Governing Judicial Conduct 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.” [22 NYCRR 100.3(D)(2).] This Committee has generally and consistently advised that the presiding judge can best determine whether an attorney has committed a substantial violation of the Code of Professional Responsibility. [Opinions 04-74; 02-85; 98-95 (Vol. XVII); 91-114 (Vol. VIII).]

Sometimes, a substantial Code violation is so clearly serious or egregious that the Committee has said a judge should report it to a disciplinary authority. [See, e.g., Opinions 05-37; 02-129.] Here, Lawyer B admitted under oath he/she committed perjury. Such conduct “implicates the attorney’s honesty, trustworthiness or fitness as a lawyer,” and therefore is a substantial violation of the Code of Professional Responsibility. [See Opinions 06-99; 04-74; 89-74 (Vol. IV); 89-54 (Vol. III).] In such circumstances, the judge should report Lawyer B to the appropriate disciplinary committee. Whether to report to another authority, however, rests in the judge’s sole discretion. [See Opinion 05-84; Joint Opinion 88-85 and 88-103 (Vol. III).] As to Lawyer A, who did not testify during the hearing, the judge must determine whether there is a substantial likelihood that he/she committed a substantial violation of the Code of Professional Responsibility, and if so, take the appropriate action. [Opinions 06-24; 02-85.]

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NYPRR Editor