NYSBA Committee on Professional Ethics
Background: Over the course of a proceeding, an attorney admitted to a judge that he improperly notarized his client’s signature, purportedly as a matter of convenience. The inquiring judge stated that there was no evidence that the attorney committed this impropriety for any other reason, nor on any other occasion. The inquiring judge asks whether the judge must report the attorney to a disciplinary authority.
Opinion: When a judge receives information that lawyer’s misconduct is a substantial violation of the Rules of Professional Conduct, but does not rise to an egregious level, the judge has the discretion to take some appropriate action other than reporting the misconduct to a disciplinary authority. The only instances where a judge must report an attorney to a disciplinary authority is where the misconduct implicated the attorneys’ honesty, trustworthiness or fitness as a lawyer. In making an evaluation, the judge must look at the surrounding circumstances, including whether the lawyer has shown remorse, contrition or ignorance of a rule. The judge must also look to the attorney’s past conduct and any other relevant factor known to the judge.