The Various Stages of a New York
Attorney Ethics Matter

NY attorney ethics investigations follow a set path. Attorney-Respondents should be familiar with the various offramps provided by 22 CRR-NY 1240.7 et seq.

The Way a New York Attorney Ethics Investigation Starts

When an attorney is served with a copy of a NY ethics complaint, there is a certain procedural path that the matter will typically follow. However, that path also contains a number of exit ramps; hence, at any point, the matter may be concluded for one reason or another prior to a hearing. 22 CRR-NY 1240.7 et seq. Those reasons are numerous, and an attorney-respondent facing an ethics complaint should be familiar with them.

 

1. The Manner in which the NY Ethics Complaint is Originally Docketed by the Committee.

The NY ethics committee will usually receive a written complaint “signed by the complainant which need not be verified.” Id. In the alternative, “investigations may also be authorized by a committee acting” on its own. Id.

Importantly, the complaint is filed “in the judicial department encompassing the respondent’s initial registration address on file with the Office of Court Administration.” If they are outside New York state, that will be the judicial department “in which the respondent was admitted to practice law.” Id.



2. The process of Investigating the NY Ethics Complaint

The respondent will normally be asked to begin the investigation process by providing a “written response to the complaint, and to appear and produce records… for a formal interview or examination under oath.” Id. Thereafter, the investigation will involve the various aspects that one would expect; such as obtaining documents and statements from both the complainant and respondent, as well as relevant third parties. Likewise, the chief attorney for the ethics committee may generate subpoenas for documents and testimony from third party witnesses who appear “necessary for proper determination of the validity of the complaint.” Id.



3. The Investigation May be Terminated Before it Even Begins.

Obviously, there are a range of actions the chief attorney may take once the investigation is concluded. For example, they may “decline to investigate a complaint for reasons that include” the fact that the subject matter is not within the purview of the statute, the facts underlying the complaint would not be a violation of the NY Rules of Professional Conduct, the matter would be better handled by another forum, such as the civil litigation process or the matter complained of is inseparable from the underlying facts of “another pending legal action or proceeding.” Id.

That is only the first of six avenues by which the committee can proceed under section 1240.7. The committee may do the following:

(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 . . . 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.

(vi) when the committee finds 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, authorize a formal disciplinary proceeding as set forth in section 1240.8.

 

4. The Respondent Can Seek to Vacate the Admonition or the Complainant May Seek Reconsideration of the Dismissal or Declination to Investigate.

If the disposition by the ethics committee is something they find objectionable, the respondent and the complainant will typically each have options.

For example, the respondent faced with an admonition “may make an application to the court, on notice to the committee to vacate…” Id. Likewise, the complainant may “submit a written request for reconsideration” of a dismissal or declination by the committee.” Id.

For more detail on the pre-hearing process, please refer to Questions to Ask When Facing a NY Ethics Complaint. For a discussion of the pleading, motion and hearing process, please refer to Questions to Ask When You Are the Subject of a New York Attorney Disciplinary Proceeding. Finally, should the matter arise from an issue concerning a trust account, please review our page concerning IOLA attorney trust accounts.

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.

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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