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Watchdog agency acts on two complaints

Lawyers forced to comply with subpoena

By: Bennett Loudon//June 5, 2023

Watchdog agency acts on two complaints

Lawyers forced to comply with subpoena

By: Bennett Loudon//June 5, 2023

The New York State Commission on Judicial Conduct has recently taken action in two cases.

After two attorneys refused to obey a subpoena from the Commission regarding complaints of misconduct against a judge, a state Supreme Court Justice in Albany compelled them to cooperate after the Commission took them to court.

The two attorneys — Shawn J. Smith, of Delaware County, and Gregory B. Peirez, of Chenango County — were required to testify and produce emails pertinent to the Commission’s inquiry.

The Commission served subpoenas on Smith and Peirez in September. An attorney for Smith and Peirez told the Commission, on Oct. 19, that they would not comply.

The Commission filed a petition on Oct. 21 asking acting Supreme Court Justice Gerald W. Connolly to compel Smith and Peirez to comply.

The attorney for Smith and Peirez filed papers in opposition to the Commission on Nov. 8, and the Commission filed a reply on Nov. 12.

Connolly heard oral arguments on Nov. 15, and issued a decision on Jan. 3, ordering Smith and Peirez to appear before the Commission for testimony and produce the subpoenaed emails.

Smith and Peirez finally produced the subpoenaed material and appeared for testimony on Feb. 3, 2023.

Connolly unsealed portions of the court file that were not considered confidential according to law. The public documents in the case are available on the Commission’s website.

Some material from the Commission’s investigation was shown to the court in chambers and remains confidential. The identity of the judge under investigation also remains confidential.

This matter was filed under seal and was not public because Commission matters are confidential under Judiciary Law Section 45 and because the judge under investigation was not involved in the court case before Connolly.

The Commission noted in papers filed with the court that, under Rule 8.3(b) of the Code of Professional Conduct: “A lawyer who possesses knowledge or evidence concerning another lawyer or a judge shall not fail to respond to a lawful demand for information from a tribunal or other authority empowered to investigate or act upon such conduct.”

In a statement released to the news media, Commission Administrator Robert H. Tembeckjian wrote: “Compliance with duly issued subpoenas from the Judicial Conduct Commission, or from any other governmental entity, is not optional.”

“Where, as here, the witnesses are lawyers, who have an ethical obligation to cooperate with investigating tribunals, it should not be necessary to seek a court order for their compliance,” he wrote.

In another recent case, the Commission determined that Elizabethtown Town Justice Richard F. Olcott, in Essex County, should be censured.

The Commission found that the judge should be disciplined for involving himself in the disposition of a traffic ticket issued to his son.

Olcott, who is not an attorney, has been a justice in Elizabethtown since 2020. His current term expires on Dec. 31.

In a statement sent to the news media, Tembeckjian wrote: “Public confidence in the integrity of the courts requires a judge to step aside in any case where a close relative is charged.”

“In such situations, the judge is disqualified and must play no part, even if the charge is a relatively minor traffic violation, the infraction is cured, and the disposition is similar to what anyone else would have received in similar circumstances,” he wrote.

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