Questions to Ask When Facing a NY Ethics Complaint

What are the off-ramps an attorney facing a NY ethics complaint may use to avoid a formal disciplinary proceeding?

Was the attorney ethics complaint filed properly?¹
The first question is the most obvious: was the complaint filed at all? Yes, you are being contacted by someone representing themselves as speaking for the New York ethics system, and there is little doubt that they believe a complaint was actually filed against you. But doesn’t it make sense to ensure that all the necessary procedures were followed, such as:

(a) the complaint was in writing;

(b) if it was not in writing, it was authorized by an ethics committee acting sua sponte; and

(c) that it was filed in the judicial department encompassing the attorney’s registration address on file with the OCA (Office of Court Administration)?

These may seem like unimportant procedural nuances, but they are actually significant defenses to the initiation of the ethics investigation because they are specifically referenced in the relevant rules.

“Investigations of professional misconduct may be authorized upon receipt by a Committee of a written original complaint, signed by the complainant, which need not be verified. Investigations may also be authorized by a Committee acting sua sponte.” 22 CRR-NY § 1240.7(a)

“The complaint shall be filed initially in the Judicial Department encompassing the respondent’s registration address on file with the Office of Court Administration. If that address lies outside New York State, the complaint shall be filed in the Judicial Department in which the respondent was admitted to the practice of law or otherwise professionally licensed in New York State. The Committee or the Court may transfer a complaint or proceeding to another Department or Committee as justice may require.” 22 CRR-NY § 1240.7(a)(2)

What are the reasons a filed attorney ethics complaint might not be investigated, but declined instead?
Just because the complaint is filed properly, does not mean that it will necessarily lead to an investigation. There is a screening process that the Chief Attorney will perform to determine the validity of the complaint. Importantly, this is a required step, such that if it is skipped for some reason, that could provide a potent defense to object to the investigation.

There are at least four significant reasons that an ethics complaint might be declined by the Chief Attorney. It is important that the Respondent keep them in mind, and as appropriate, raise questions if the Chief Attorney proceeds in spite of them. They are:

(a) the matter involves a person or conduct not covered by this Part;

(b) the allegations, if true, would not constitute professional misconduct;

(c) the complaint seeks a legal remedy more appropriately obtained in another forum; or

(d) the allegations are intertwined with another pending legal action or proceeding. The complainant shall be provided with a brief description of the basis of any disposition of a complaint by the chief attorney.

22 CRR-NY § 1240.7(d)(1)

What are the other typical ways in which a New York ethics complaint might be considered by an “alternate forum”?
Interestingly, there are a number of scenarios in which the ethics complaint might be handled through what is referred to as an “alternate forum.” For example, if the “complaint involves a fee dispute, a matter suitable for mediation, or a matter suitable for review by a bar association grievance committee.” 22 CRR-NY 1240.7(d)(2). It should be noted that, under such circumstances, both the Respondent and the Complainant must receive adequate notice. Id.

What are the guardrails for how a New York ethics investigation should be conducted?
It is important to keep in mind that, as a jurisdictional matter, an ethics investigation has definite limitations. It is important for the attorney to keep them in mind, in case they are exceeded in one way or another. In the resulting formal attorney ethics case, it would be best to first advise the Chief Attorney who is conducting the investigation so that the error can be corrected (or disputed). If it is not adequately addressed, it should be raised again if the matter proceeds beyond the investigatory stage.

The “guardrails” for such an investigation are fairly straightforward. They include the following actions that the Chief Attorney is authorized to undertake:

(1) interview witnesses and obtain any records and other materials and information necessary to determine the validity of a complaint;

(2) direct the respondent to provide a written response to the complaint, and to appear and produce records before the chief attorney or a staff attorney for a formal interview or examination under oath;

(3) apply to the clerk of the court for a subpoena to compel the attendance of a person as a respondent or witness, or the production of relevant books and papers, when it appears that the examination of such person or the production of such books and papers is necessary for a proper determination of the validity of a complaint. Subpoenas shall be issued by the clerk in the name of the presiding justice and may be made returnable at a time and place specified therein; and

(4) take any other action deemed necessary for the proper disposition of a complaint.
22 CRR-NY § 1240.7(b)

Once the New York attorney ethics investigation is complete, are there actions that can be taken by the Chief Attorney short of authorizing a formal disciplinary proceeding?
One of the often-overlooked aspects of the disciplinary process is that an exit ramp is available between the conclusion of a formal investigation and the initiation of a disciplinary proceeding.

In fact, there are at least five separate such alternatives, each of which the Respondent should be ready to raise with the Chief Attorney conducting the investigation, as appropriate. They are:

Disposition by the committee. After investigation of a complaint, with such appearances as the committee may direct, a committee may take one or more of the following actions:

(i) dismiss the complaint by letter to the complainant and to the respondent;

(ii) when it appears that a complaint involves a fee dispute, a matter suitable for mediation, or a matter suitable for review by a bar association grievance committee, refer the complaint to a suitable alternative forum upon notice to the respondent and the complainant;

(iii) make an application for diversion pursuant to section 1240.11 of this Part;

(iv) when the committee finds that the respondent has engaged in conduct requiring comment that, under the facts of the case, does not warrant imposition of discipline, issue a letter of advisement to the respondent;

(v) when the committee finds, by a fair preponderance of the evidence, that the respondent has engaged in professional misconduct, but that public discipline is not required to protect the public, maintain the integrity and honor of the profession, or deter the commission of similar misconduct, issue a written admonition to the respondent, which shall clearly state the facts forming the basis for such finding, and the specific rule or other announced standard that was violated. Prior to the imposition of an admonition, the committee shall give the respondent 20 days’ notice by mail of the committee’s proposed action and shall, at the respondent’s request, provide the respondent an opportunity to appear personally before the committee, or a subcommittee thereof, on such terms as the committee deems just, to seek reconsideration of the proposed admonition.
22 CRR-NY § 1240.7(d)(2)

What is the standard that the New York ethics committee must demonstrate to proceed with a formal disciplinary proceeding against an attorney?
There is a fairly high threshold for the investigation to result in a formal disciplinary proceeding. The committee must “ fin[d] that there is probable cause to believe that the respondent engaged in professional misconduct warranting the imposition of public discipline, and that such discipline is appropriate to protect the public, maintain the integrity and honor of the profession, or deter others from committing similar misconduct.” Under such circumstances, the committee may “authorize a formal disciplinary proceeding…”

¹The citations and quotes set forth on this webpage were accurate as of 2021. Please remember to update them if they apply to your matter.

The Nissenbaum Law Group’s Approach to NY Attorney Ethics Investigations

What should be obvious from the answers to these six questions is that just because an attorney receives word that they are the subject of a New York ethics complaint, that does not necessarily mean they will be the subject of a formal disciplinary proceeding. Indeed, our approach at that incipient stage is three-fold:

(1) We shall consider reaching out to the Chief Attorney or other investigator to determine the facts that are not necessarily contained in the four corners of the ethics complaint, some of which may be adduced through the investigation itself.

(2) We shall consider the key underlying rules, cases and advisory opinions respecting the Rules of Professional Conduct implicated by the factual predicate set forth in the complaint.

(3) We shall seek to utilize one of the many “off-ramps” to derail the process from reaching the disciplinary proceeding stage.

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PUBLICATIONS & PRESENTATIONS

Gary D. Nissenbaum, Esq.

Presented Seminar, Six Aspects of Attorney Ethics Enforcement in NJ, NY & PA That You May Not Have Heard About Before, Lawline, March 2024
Panelist, New Jersey Trust and Business Accounting, New Jersey Institute for Continuing Legal Education, February 2021
Presented Seminar, How to Avoid Serious Mistakes When Facing an Ethics Grievance or Random Trust Account Audit, Essex County Bar Association, December 2020
Presented Seminar, “Good Grievance, Charlie Brown!” Latest Developments in NJ Ethics Law and Procedure, New Jersey Institute for Continuing Legal Education, July 2020
Presented Seminar, How to Avoid Serious Mistakes When Facing an Ethics Grievance, Wilshire Grand Hotel, December 2019
Presented Seminar, Attorney Ethics Grievances: 20 Insights from the Trenches, Wilshire Grand Hotel, December 2016
Presented Seminar, Attorney Ethics Grievance Process, Union County Bar Association, 2011

Anthony C. Gunst, Esq.

Presented Seminar, Six Aspects of Attorney Ethics Enforcement in NJ, NY & PA That You May Not Have Heard About Before, Lawline, March 2024
Presented Seminar, How to Avoid Serious Mistakes When Facing an Attorney Ethics Matter, New Jersey Association of Legal Administrators, April 2023

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