By Sarah Diane McShea [Originally published in NYPRR May 1998]
Most lawyers will receive at least one complaint of unethical conduct at some point during their careers. This is true for lawyers who never practice law and it is true for lawyers who hold themselves to the highest standards of the profession. Disciplinary complaints are a fact of professional life, and all lawyers should know how the disciplinary process works.
Some lawyers assume that familiarity with the disciplinary system suggests ethical shortcomings on their part and, almost as a badge of honor, avoid learning about the process. This approach is self-defeating and may be perilous. All lawyers, no matter how upright and ethical, should know how the lawyer disciplinary system works. This article is an overview and handy reference guide for the uninitiated. Lawyers who receive complaints are well-advised to consult counsel.
Organization of New York Disciplinary System
In New York, lawyers are licensed and disciplined by the Appellate Divisions of the Supreme Court. [Judiciary Law §90.] This has been the case in New York for more than 125 years, but it is contrary to the practice in most jurisdictions, in which either the highest state court or the state bar (in those states that have integrated bars) disciplines attorneys. A New York lawyer may come under the jurisdiction of more than one Appellate Division. Each court asserts authority over lawyers who were admitted to practice by that court, as well as over lawyers residing, practicing or committing acts within its jurisdiction. [See, 22 NYCRR 1 603.1 (1st Dept.); 22 NYCRR §691.1 (2nd Dept.); 22 NYCRR §806.1 (3rd Dept.); 22 NYCRR §1022.1 (4th Dept.) (McKinney’s 1998). In addition, the 1st Dept. has disciplinary jurisdiction over law firms, which may he disciplined to the same extent as lawyers.]
In each of the four appellate departments, there is at least one disciplinary or grievance committee which is authorized to investigate and prosecute complaints against lawyers. There are eight committees in the four departments and they operate quite differently from each other. The published rules governing the operation of these committees are helpful, although in some cases, procedures have been established which are not fully described in the rules. [See, 22 NYCRR §§03.4, 603.5, and Part 605 (as amended by order of the Appellate Division. 1st Dept., dated 2/13/1998); 22 NYCRR §691.4, 691.6 (2nd Dept.); 22 NYCRR §1806.3, 806.4 (3rd Dept.); 22 NYCRR §1022.19 (4rth Dept.).]
In addition, in some departments, the local bar associations continue to be involved in investigating, resolving or mediating lower-level complaints, particularly those involving fee disputes, lack of communication or minor neglects. The Appellate Divisions are expanding the role of the bar associations in mediating these lower-level complaints, which will permit the disciplinary committees to concentrate on more serious matters.
Disciplinary Process, from Complaint to Discipline
A disciplinary investigation typically begins with a complaint against a lawyer. The complaint is often from a client, sometimes from an adversary, and occasionally from a judge. [Note: Disciplinary agencies are authorized to begin sua sponte investigations of lawyers, if they have reason to do so. Sua sponte complaints may be based on media accounts of lawyers’ personal or professional misdeed a or on reported decisions in cases in which lawyers, either as parties or as advocates, are criticized, sanctioned or found guilty of unethical conduct.] If the complaint alleges professional misconduct on the lawyer’s part, the disciplinary agency will generally require the lawyer to submit a written response.
Lawyers often complain about the burden this places upon them. They argue that many complaints are filed by clients who are simply dissatisfied with the result obtained in their case or the fees charged by their lawyers, and that many complaints barely mention unethical conduct. It is true that if disciplinary agencies conducted preliminary inquiries, many more complaints would be resolved or rejected without any response from the lawyer. When disciplinary agencies were understaffed and underfunded, conducting preliminary inquiries was simply not feasible. Now, however, agencies have the resources to conduct preliminary inquiries before requiring lawyers to respond to complaints and it is time to update an outmoded investigatory practice.
After receiving a complaint from a disciplinary agency, a lawyer must file a written response. The lawyer’s written response is one of the most important documents in the disciplinary process, for it can and often is used against the lawyer by the disciplinary agency. However, it is also the lawyer’s best opportunity to persuade the agency that the lawyer has done nothing wrong or that there is a satisfactory explanation or mitigating circumstances. The lawyer’s response is typically sent to the complaining party for a reply or comments.
The Three ‘Cs’
The watchwords for lawyers in the disciplinary process are “candor, contrition, and cooperation,” otherwise known as the “3 Cs.” A lawyer should always “cooperate” with the disciplinary agency, for failure to cooperate may have draconian consequences. A lawyer who fails to answer a disciplinary complaint, or fails to respond to an agency’s requests, or fails to appear in response to a subpoena issued by the Appellate Division, may be suspended for “failure to cooperate.” [Note: The Appellate Divisions rules provide for the interim suspension of lawyers guilty of conduct immediately threatening the public interest. Lawyers who fail to cooperate are routinely suspended on an interim basis from the practice of law, even if the underlying complaint is not particularly serious.]
A lawyer also should be candid, accurate and honest in responding to a disciplinary complaint or questions from the agency. A lawyer’s dishonesty or “lack of candor” can be even more damaging than the allegations in the complaint itself. In general, a lawyer’s answer should be professional in tone, responsive to the issues and detailed enough to demonstrate that there has been no impropriety on the lawyer’s part.
One caveat is that a lawyer’s admission of misconduct, however technical in nature, may well result in formal action by the agency. Obviously there are times when admitting misconduct is unavoidable and even tactically advisable. But it is rarely beneficial to admit misconduct or error when none exists.
Leverage in Civil Disputes
Lawyers grumble about the misuse of the disciplinary process by complainants seeking leverage in civil disputes. Although disciplinary agencies are not obliged to halt their investigations because civil litigation is pending, sometimes they will agree to do so. A lawyer who is involved in both a disciplinary matter and parallel civil litigation should not attempt to condition settlement of the civil dispute upon withdrawal of the disciplinary complaint. The disciplinary agency is not bound by the withdrawal of the complaint and may begin a more serious investigation into the lawyer’s attempt to obstruct or interfere with the disciplinary inquiry.
After obtaining a response to the complaint (and a reply from the complainant), the disciplinary agency may dispose of the matter or continue the investigation. The agency may request files or records from the lawyer, interview witnesses or depose the lawyer. The agency may also compel the lawyer’s appearance and testimony, and subpoena the lawyer’s files and records. Again, a lawyer who fails to respond to the disciplinary agency’s requests risks suspension from practice.
Action By Agency at Close of Investigation
At the conclusion of the investigation, the disciplinary agency may dismiss the complaint or take formal action against the lawyer. About ninety percent of all disciplinary complaints are ultimately dismissed. If a complaint is not dismissed, the agency may issue a Letter of Caution or an Admonition. The agency may also issue a Private Reprimand after a hearing. A Letter of Caution is not “discipline and generally does not have to be reported elsewhere. An Admonition or a Reprimand is discipline and may have to be reported. Letters of Caution, Admonition and Reprimand are private and confidential dispositions. They become however, a permanent disciplinary record, which may be used in future proceedings. [See, 22 NYCRR §603.9 (1st Dept. may issue admonitions and reprimands); 22 NYCRR §691.6 (2nd Dept. may issue letters of caution, admonitions and reprimands); 22 NYCRR §806.4(c) (3d Dept. may issue letters of education and caution and admonitions); 22 NYCRR §1022.19(e) (4th Dept. may issue letters of caution and admonitions).]
Although a lawyer is entitled to “appeal” these agency determinations, the efficacy of the appeal process varies considerably. Often, a lawyer is wise to appeal an unwarranted determination, which may have to be reported on an application for admission in another jurisdiction, some pro hac vice applications or a malpractice policy renewal application. A lawyer considering public service or future judicial appointment should be understandably concerned about receipt of an unjustified or inaccurate Letter of Caution, Admonition or Private Reprimand. In more serious cases, the agency may file formal charges against the lawyer, alleging violation of one or more disciplinary rules of the Code of Professional Responsibility.
Formal Disciplinary Charges and Hearings
Formal charges are brought against the lawyers who are alleged to have committed serious misconduct, such as commingling or conversion of client funds, or who are alleged to have committed a pattern of lower-level misconduct, such as multiple neglects of client matters. Formal charges may also be brought if the lawyer has a disciplinary history, which is another reason not to accept an unjustified Letter of Caution or Admonition. Hearings are conducted before court-appointed referees, hearing panels or disciplinary agency subcommittees. The rules governing these proceedings vary from department to department. [See, 22 NYCRR §605.11 et seq.; 22 NYCRR §691.4; 22 NYCRR §806.5; 22 NYCRR §1022.19(1).]
It is possible, however, to make some general observations about the formal process. By state law, disciplinary proceedings are private and confidential. Lawyers have certain due process rights, including the right to notice and a hearing on the charges of misconduct, the right to counsel, to confront witnesses, to subpoena witnesses and documents (in some departments, but not all), and to present evidence in mitigation and explanation of any misconduct. Lawyers retain their Fifth Amendment right not to incriminate themselves. As in civil actions, however, exercise of one’s Fifth Amendment right permits the trier of fact to draw an adverse inference that the lawyer cannot defend the charges.
Rules of Evidence Do Not Apply
The rules of evidence do not apply or, at least, their application is not required. There is no statute of limitations in disciplinary proceedings and courts have held that the doctrine of laches does not apply, although the age of the matter is sometimes taken into account in determining the appropriate sanction to be imposed upon a lawyer. The standard of proof is a “fair preponderance” of the evidence. Proposals to raise the standard to “clear and convincing” evidence, which most other jurisdictions require, have been unsuccessful thus far.
If the charges of professional misconduct are sustained, the Appellate Division may censure, suspend or disbar the attorney. There is no automatic right of appeal to the Court of Appeals. The lawyer may seek leave to appeal, but leave is rarely granted. The Court of Appeals has repeatedly stated that it will not review the disciplinary sanctions imposed upon lawyers.
We could write reams about the attorney disciplinary process. The Appellate Divisions and Chief Judge Judith Kaye have been active in promoting the greater efficiency and effectiveness of the disciplinary system in New York, and many proposals are currently pending which would change much of what now exists.
The rules governing lawyer conduct are constantly being revised and updated. Lawyers must keep abreast of these changes, for they set the minimum standards for the personal and professional conduct for practicing and non-practicing attorneys. Failure to abide by the rules and unfamiliarity with the disciplinary process can be personally and professionally devastating. Above all — when in doubt, consult counsel.
DISCLAIMER: This article provides general coverage of its subject area and is presented to the reader for informational purposes only with the understanding that the laws governing legal ethics and professional responsibility are always changing. The information in this article is not a substitute for legal advice and may not be suitable in a particular situation. Consult your attorney for legal advice. New York Legal Ethics Reporter provides this article with the understanding that neither New York Legal Ethics Reporter LLC, nor Frankfurt Kurnit Klein & Selz, nor Hofstra University, nor their representatives, nor any of the authors are engaged herein in rendering legal advice. New York Legal Ethics Reporter LLC, Frankfurt Kurnit Klein & Selz, Hofstra University, their representatives, and the authors shall not be liable for any damages resulting from any error, inaccuracy, or omission.