NYS Advisory Committee on Judicial Ethics – Attorney misconduct: Opinion 22-164

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New York State Advisory Committee on Judicial Ethics

Attorney misconduct

Judge’s reporting obligations

Opinion 22-164

Background: The inquiring judge has become aware of potential misconduct by three attorneys. He inquired into his obligations and the actions he must take in light of the information he has acquired.

Opinion: The Committee concluded that a judge must report an attorney who, on learning that a non-party would only honor a judicial subpoena, personally signed a subpoena above the judge’s name and served it on the non-party. However, reporting may wait until the conclusion of the case. The Committee also concluded that a judge has no disciplinary obligation with respect to an attorney for a non-party who honored the purported judicial subpoena. Finally, with respect to an allegation that an attorney provided a photograph of their client’s party adversary acting unprofessionally to that party’s employer, the judge has full discretion to determine whether the judge has received information indicating a substantial likelihood that the attorney committed a substantial violation of the attorney ethics rules. If the judge concludes this standard is not met, the judge need not take any action. If the judge concludes this standard is met, the judge must take appropriate action, but has full discretion to determine what action is appropriate under the circumstances.