Recently, the New York State Bar Association Committee on Professional Ethics opined that a government lawyer with knowledge of another government agency lawyer’s ethical violation that questions the lawyer’s fitness to practice law must report the information to a tribunal authorized to investigate the conduct, unless the information is confidential and the agency does not consent to its disclosure. Lawyers
“Tribunal” is defined by New York Rule 1.0 as “a court, an arbitrator in arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a legal judgment directly affecting a party’s interests in a particular matter.” [Emphasis added.]
If a report to a tribunal or other authority is necessary, the lawyer must determine if the government agency’s ethics office is considered a tribunal or other authority authorized to act upon such violation. If the ethics office is not considered a tribunal or such other authority under these standards, the government lawyer may report initially to the ethics office of the government agency. However, the lawyer may not defer to a decision by the ethics office not to report unless the reporting obligation involves an “arguable question of professional duty” and the decision of the ethics office not to report is a reasonable resolution.
Yet, it’s important to highlight that a mere suspicion of misconduct is not sufficient under Opinion 1120. A lawyer must have knowledge of said misconduct.
To read the opinion click here.
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