New York: No Obligation for a Lawyer to Report a Judicial Misconduct

The New York State Bar Association’s (NYSBA) Committee on Professional Ethics recently opined that lawyers do not have a duty under the Rules of Professional Conduct (“RPC”)to report judicial misconduct; however, a lawyer may report a  judge for a violation of the Rules of Judicial Conduct (“RJC”). The opinion also cautions lawyers to be mindful of their duty of client confidentiality and to obtain client consent if necessary.

In reaching its conclusion the NYSBA Committee reviewed not only the currently reporting rule, but also the legislative history pertaining to the enactment of New York’s current Code of Professional Conduct.

RPC 8.3 discusses both a New York lawyer’s duty to report and to cooperate. RPC 8.3 reads:

“(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.

(b) 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.”

Notably, RPC 8.3(a) dictates a New York lawyer’s duty to report, while RPC 8.3(b) dictates a New York lawyer’s duty to cooperate. Importantly, RPC 8.3(a) does not include judges while RPC 8.3(b) does encompass judicial conduct.

The NYSBA’s Committee of Professional Ethics juxtaposed RPC 8.3 with its predecessor (Disciplinary Rule 1-103 of the former New York Code of Professional Conduct) and proposed amendments to RPC 8.3 that included the duty to report violations of the RJC. The Committee concluded that despite other states’ reporting requirements that include judges, the Committee would be overreaching if it mandated such a duty. The committee’s conclusion is based on the fact that the proposal to include judicial misconduct in the reporting requirements of RPC 8.3 was ultimately rejected by the courts upon adoption of the rules

Read the Opinion here.

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