Duty to Report Attorney and Judge for Misconduct in Another Court

August 29, 2007

CJE Opinion No. 2007-8

You have asked whether you have an ethical responsibility to report another judge and an attorney for misconduct.  The basic facts are as follows.  The attorney appeared as a self-represented litigant in an action in court A.  He also commenced an action in court B, where you sit, against a defendant who is related to the defendant in the action in court A,   alleging that defendant B was hiding some of defendant A's assets.  A judge (other than you) granted summary judgment for defendant B in the court B action, and the case later came before you on defendant B's request for attorney's fees.  In the course of the proceeding, you learned that a judgment has been entered in the action in court A.  In reviewing the memorandum in support of defendant B's request for attorney's fees -- which quoted a sentence from the statement of facts in judge A's decision -- you also learned that judge A had found that the attorney-litigant had filed false affidavits in court A and had also engaged in other unspecified "inappropriate conduct" in that court.  You have not seen the affidavits filed in court A and do not have specific information regarding what constitutes the inappropriate conduct mentioned in judge A's statement of facts.  Nor do you have a copy of judge A's decision; you only have the quotation of a sentence from the decision.  The attorney-litigant has told you that the judgment in court A is on appeal, and that there is no case currently pending against him at the Board of Bar Overseers (board).  In his colloquy with you, however, he apparently did not challenge judge A's finding.

You ask whether, in these circumstances, you are required to report the attorney to the bar counsel's office of the board, and whether you are required to report judge A to the Chief Justices of the Supreme Judicial Court and of court A for failing to report the attorney's misconduct.  We direct your attention to Section 3 D of the Code of Judicial Conduct, which states:

"(1)  A judge having knowledge of facts indicating a substantial likelihood that another judge has committed a violation of the Code that raises a significant question about that judge's honesty, integrity, trustworthiness, or fitness for judicial office shall inform the Chief Justice of this court and of that judge's court.  A judge having knowledge of facts indicating a substantial likelihood that another judge has committed a violation of the Code that does not raise a significant question of that judge's honesty, integrity, trustworthiness, or fitness for judicial office shall take appropriate action.

   "(2)  A judge having knowledge of facts indicating a substantial likelihood that a lawyer has committed a violation of the Rules of Professional Conduct that raises a significant question as to that lawyer's honesty, integrity, trustworthiness, or fitness as a lawyer shall inform the Bar Counsel's office of the Board of Bar Overseers."

From the facts you have provided, the committee concludes that you are required under Section 3 D (2) to report the attorney to bar counsel.  However, you do not have the requisite knowledge for reporting judge A.  Knowledge, as defined in the terminology section of the Code, "denotes actual knowledge of the fact in question.  That a person has actual knowledge may be inferred from circumstances."

Section 3 D requires judges to report when they have knowledge of facts indicating a substantial likelihood of a serious ethical violation.  The commentary to Section 3 D explains:

"While a measure of judgment is required in complying with this Section, a judge must report lawyer misconduct that, if proven and without regard to mitigation, would likely result in an order of suspension or disbarment, including knowingly making false statements of fact or law to a tribunal, suborning perjury, or engaging in misconduct that would constitute a serious crime.  A serious crime is any felony, or a misdemeanor a necessary element of which includes misrepresentation, fraud, deceit, bribery, extortion, misappropriation, theft, or an attempt, conspiracy, or solicitation of another to commit the above crimes.  Section 3 D (2) does not preclude a judge from reporting a violation of the Massachusetts Rules of Professional Conduct in circumstances where a report is not mandatory.  Reporting a violation is especially important where the victim is unlikely to discover the offense.  If the lawyer is appearing before the judge, a judge may defer making a report under this Section until the matter has been concluded, but the report should be made as soon as practicable thereafter.  However, an immediate report is compelled when a person will likely be injured by a delay in reporting, such as where the judge has knowledge that a lawyer has embezzled client or fiduciary funds and delay may impair the ability to recover the funds."

You have seen defendant B's memorandum quoting from judge A's decision, but not a copy of the decision itself.  From the quoted portion of the decision, you have actual knowledge that false affidavits were filed in court A, even though you are not aware of their content.  You also have actual knowledge that judge A has concluded that the attorney-litigant engaged in other inappropriate conduct, although, again, you do not have specific knowledge of what the conduct was.  The filing of a false sworn affidavit constitutes making a false statement before a tribunal, and, subject to a determination of its materiality, might even constitute perjury for purposes of G. L. c. 268, ' 1 A.  Judge A's decision indicates that the attorney's "filing of false sworn Affidavits with the Court . . . and his inappropriate conduct during the pendency of the litigation were the primary causes of protracted, expensive litigation . . . .  [His] conduct during the litigation was particularly egregious because [he], as a practicing attorney, has a heightened obligation to adhere to the rules and Orders of the Court."  Those findings show that the false affidavits were material factors in the conduct of the proceedings in court A, and thus raise a significant question as to the lawyer's honesty, trustworthiness, or fitness.  You do not know if the matter has already been reported to bar counsel by anyone else, and, indeed, if the representation of the attorney, that no proceedings are pending against him before the board, is correct, you have reason to believe that in fact no report has been made.  If the matter has already been investigated by bar counsel or the board, then no further action will result from your report.

As for reporting judge A, you infer that because there is no record of a board proceeding, no report has been made.  On the facts you present, however, it is not known whether the judge has, or has not, in fact reported the attorney's filing of the false affidavits or other conduct.  The conduct may have been referred to bar counsel by the judge or by the opposing party.  The matter may have been investigated and resolved.  Existence of those uncertainties means that you do not have "actual knowledge of the fact in question."  Even if you did have actual knowledge that judge A did not report the attorney, the judge's failure to report does not necessarily raise "a significant question about that judge's honesty, integrity, trustworthiness, or fitness for judicial office" see Section 3 D (1), needed to trigger your obligation to report him or her.  Mandatory reporting of another judge is reserved for situations in which the reporting judge has knowledge of facts revealing a substantial likelihood of a serious violation of the other judge's ethical duty.  See the commentary to Massachusetts Rules of Professional Conduct, Rule 8.3 (governing mandatory reporting of attorney misconduct by other attorneys; paralleling mandatory reporting provision for judges under Section 3 D of Code of Judicial Conduct).  Nothing in your request suggests that any reporting omission, be it intentional or inadvertent, on the part of judge A created a substantial likelihood of misconduct rising to that level.

In sum, you have knowledge of judge A's finding that the attorney-litigant filed false affidavits and engaged in other misconduct in a judicial proceeding and that the false affidavits and other misconduct were material to the proceeding.  You therefore have knowledge of facts indicating a substantial likelihood that the attorney has committed a violation of the Massachusetts Rules of Professional Conduct that raises a significant question as to his honesty, integrity, trustworthiness, or fitness for the practice of law.  Beyond that, you do not have knowledge that the attorney's conduct has already been reported to bar counsel.  Accordingly, the committee is of the opinion that the Code requires you to report the matter to bar counsel.

However, with respect to the judge who made those findings, you do not have knowledge that he or she did not report the matter to bar counsel or the board.  Any inference that he or she did not report the matter would flow from the attorney's representation that no proceeding was pending against him at the board, yet you know that the judge had already discredited other assertions the same attorney had made under oath.  Moreover, even if the inference were not discounted by the attorney's lack of veracity, you still do not know whether the judge's decision not to report was based on knowledge that someone else had reported, or was about to report, the attorney's conduct or was a question of timing on the judge's part.  In these circumstances, the committee is of the opinion that you do not have sufficient knowledge to trigger your obligation to report the judge.