Questions to Ask When You Are the Subject of a New York Attorney Disciplinary Proceeding

What should an attorney expect when facing a formal New York disciplinary proceeding?

How can an attorney raise disputed issues of fact beyond simply including them in the answer to the disciplinary complaint?1

A New York attorney disciplinary matter begins with the standard process of filing a complaint, to which the attorney respondent files an answer. However, there is a unique additional process by which disputed issues of fact—and concomitantly, non-disputed issues of fact—may be submitted to the fact-finder prior to the hearing.

The disciplinary committee is required to file with the court “a statement of facts that identifies those allegations that the committee contends are undisputed and those allegations that the party contends are disputed and for which a hearing is necessary.” 22 CRR-NY 1240.8(a)(2). Likewise, within 20 days thereafter, the respondent is required to file their own submission, which “set[s] forth respondent’s statement of facts identifying those allegations that the respondent contends are undisputed and those allegations that the respondent contends are disputed and for which a hearing is necessary.” Id.

Interestingly, there is another process by which the committee and the respondent may jointly file a submission within 30 days after service of the answer which will include either “a joint statement advising the court that the pleadings raise no issue of fact requiring a hearing; or…a joint stipulation of disputed and undisputed facts.” Id.


What is the attorney respondent’s obligation to provide discovery with respect to the facts that they consider disputed?

Another nuance of the procedure underlying the New York disciplinary process is that, in the first instance, discovery must be provided by the party without a formal request. In other words, the party must provide disclosure “concerning the allegations that the party contends are disputed” without expressly being asked to do so. 22 CRR-NY 1240.8(a)(3)

At a minimum, the following must be provided:

(i) the name of each individual likely to have relevant and discoverable information that the disclosing party may use to support or contest the disputed allegation and a general description of the information likely possessed by that individual; and
 
(ii) a copy of each document that the disclosing party has in its possession or control that the party may use to support or contest the allegation, unless copying such documents would be unduly burdensome or expensive, in which case the disclosing party may provide a description of the documents by category and location, together with an opportunity to inspect and copy such documents.
22 CRR-NY 1240.8(a)(3)


Are subpoenas available as a discovery device in New York attorney ethics disciplinary proceedings?

The disciplinary committee or the respondent may unilaterally apply to the clerk of the court to issue subpoenas “for the attendance of witnesses and the production of books and papers before court or the referee designated by the court to conduct a hearing on the issues raised in the proceeding.” 22 CRR-NY 1240.8(a)(4)


In an attorney ethics proceeding, is there a way to preserve and present the testimony of unavailable witnesses?

When it comes to unavailable witnesses, the disciplinary hearing procedures are informed by the standards set forth in the CPLR. (“When there is good cause to believe that a potential witness will be unavailable at the time of a hearing, the testimony of that witness may be initiated and conducted, and used at the hearing, in a manner provided by article 31 of the New York Civil Practice Law and Rules.”) 22 CRR-NY 1240.8(a)(4).

For example, the basic parameters that would be available to the party seeking to preserve and present the testimony of an unavailable witness would presumably need to accord with NY CPLR 3117.


In NY, is there a way of terminating the ethics disciplinary proceeding by imposing discipline by consent?

After the petition initiating the hearing procedure is filed, the committee and the respondent are always at liberty to jointly submit a motion to the court seeking discipline by consent. The documents that must be included in such a motion are fairly straightforward: (a) a stipulation of facts; (b) the respondent’s conditional admission of the acts of professional misconduct and the specific rules or standards of conduct violated; (c) any relevant aggravating and mitigating factors, including the respondent’s prior disciplinary record; and (d) the agreed upon discipline to be imposed, which may include monetary restitution authorized by Judiciary Law section 90(6-a). 22 CRR-NY 1240.8(a)(5). In the event that the allegations of an ethical violation concern willful misappropriation or misapplication “of money or property in the practice of law, and the respondent has conditionally admitted facts establishing that restitution is owed, the parties, in the joint motion, shall” include the following, as well:

(a) identify the person or persons whose money or property was willfully misappropriated or misapplied;

(b) specify the value of such money or property; and

(c) state that the respondent has consented to the entry of an order requiring the respondent to make monetary restitution pursuant to Judiciary Law section 90(6-a).
Id.

In either event, the joint motion shall include “an affidavit of the respondent acknowledging that the respondent (a) conditionally admits the facts set forth in the stipulation of facts; (b) consents to the agreed upon discipline; (c) gives the consent freely and voluntarily without coercion or duress; and (d) is fully aware of the consequences of consenting to such discipline.” Id. In addition, “[n]otice of the joint motion, without its supporting papers, shall be served upon the referee, if one has been appointed, and all proceedings shall be stayed pending the court’s determination of the motion. If the motion is granted, the court shall issue a decision imposing discipline upon the respondent based on the stipulated facts and as agreed upon in the joint motion. If the motion is denied, the conditional admissions shall be deemed withdrawn and shall not be used against the respondent or the committee in the pending proceeding.” Id.


What if the attorney respondent does not file an answer in the New York disciplinary proceeding?

If the respondent does not answer the complaint, discipline may be imposed by default. “In the event a respondent fails to file an answer within the time period specified in these rules, the committee may move the court, on notice to the respondent, for an order finding the respondent in default, deeming the material allegations of the petition admitted by the respondent, and granting any other relief provided by law and warranted under the circumstances.” 22 CRR-NY 1240.8(a)(6).

 

1 The 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 they are the subject of a New York ethics complaint, that does not necessarily mean it will result in a formal disciplinary proceeding. The approach at that incipient stage may be 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 consider utilizing one of the many “off-ramps” to derail the process from reaching the disciplinary proceeding stage.

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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