New Rules for Attorney Disciplinary Matters: Formal Proceedings

Major changes are coming to attorney discipline in New York. Last December (2015), the Office of Court Administration, following recommendations in the final report of the Commission on Statewide Attorney Discipline established by then-Chief Judge Jonathan Lippman, issued new, statewide rules governing attorney disciplinary procedures to take effect July 1, 2016 (the new “uniform rules”). Set forth in 22 NYCRR Part 1240, the uniform rules will have a major impact on the way our disciplinary and grievance committees operate day-to-day.

It is perhaps easiest to describe these rule changes by focusing on three main areas: (1) formal proceedings or, as the uniform rules describe, “Proceedings in the Appellate Division;” (2) informal discipline or, as the uniform rules put it, “Proceedings Before Committees;” and, (3) related proceedings, i.e. interim suspension, diversion, criminal conviction, reciprocal discipline, reinstatement, collateral estoppel.

Formal Proceedings

In this column, I have chosen to address the uniform rules related to formal proceedings first, because loss of license is such a major “due process” concern to the bar and bench. Above all else our disciplinary system needs to be fair, and to be perceived as fair. Certainly, in this author’s view, statewide uniformity will contribute to the perception of fairness, but the devil is also in the details. Here are some highlights and concerns.

Approval of Formal Charges. The issuance of formal charges entails a probable cause determination, following a committee staff’s investigation and recommendation, that a lawyer’s alleged misconduct is sufficiently serious to warrant a “due process” hearing in which the staff invariably seeks public discipline—censure, suspension or disbarment.

The uniform rules explicitly provide that formal proceedings are to be instituted pursuant to a determination of the Attorney Grievance Committee. The rules define the committee, which is appointed in each department:

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: …(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, authorize a formal disciplinary proceeding as set forth in section 1240.8 of these Rules.1

This represents a sea change in three of the four departments. In the First Department, because of the quorum rule and concomitant requirements for all committee action to be by majority vote,2 formal charges can no longer be approved by only two members of the policy committee of the Departmental Disciplinary Committee (DDC) whom the committee chairperson appoints.3 After July 1, 2016, proposed charges will have to be presented to and approved at a meeting of the DDC as a full committee.

The Second Department faces an even more fundamental change. There, the process of approving formal charges currently requires a vote of the Grievance Committee and approval by the Appellate Division (acting, in effect, as a grand jury).4 After July 1, 2016, the Appellate Division will no longer play a role at the charging stage, an important and welcome development in this author’s view.

Finally, the Fourth Department’s current rules permit a respondent to appear before the Grievance Committee to be heard in response to proposed charges simultaneously presented to the Grievance Committee for approval.5 Presumably, under the uniform rules, that opportunity will no longer be available to respondents after July 1, 2016.

Pleadings

The uniform rules require only the following pleadings, and no other supplemental or amended pleadings except by leave of the court:

(i) a notice of petition and petition, which the Committee shall serve upon the respondent in a manner consistent with Judiciary Law §90(6), and which shall be returnable on no less than 20 days’ notice; (ii) an answer; and (iii) a reply if appropriate. Except upon consent of the parties or by leave of the Court, no other pleadings or amendment or supplement of pleadings shall be permitted.6

The rule goes on to state:

All pleadings shall be filed with the Court. The Court shall permit or require such appearances as it deems necessary in each case.7

This is troubling. While not involved in the charging process, the courts have now undertaken to oversee formal proceedings to a larger extent than ever before. This could entail substantial delays while the courts respond to motion practice and pre-hearing disputes that otherwise could and should be resolved at the committee level.

A further reflection of this is contained in the requirement that a “statement of disputed facts” be filed with the court within 20 days of service of an answer.8 The courts must then decide whether an evidentiary hearing is necessary. Needless to say, this requirement has even greater potential for delay, not to mention unclear procedures for resolving disputes over the fundamental right to a fair hearing.

Disclosure and Subpoenas

Once formal charges are filed, the uniform rules address certain disclosure obligations applicable to both sides. Specifically, the uniform rules require an exchange of witness lists and documents that the parties intend to use at a hearing to support or contest any disputed allegations of fact as set forth in the “statement of disputed facts” discussed above.9 This formalizes, and standardizes throughout the state, what heretofore was a relatively routine (in some departments) and informal, pre-hearing practice.

The uniform rule governing issuance of subpoenas for the attendance of witnesses and production of documents essentially mirrors the existing rule in the First and Second Departments, namely, that upon application by either party, the clerk of the court may issue a trial subpoena returnable before the court or the referee assigned to conduct a hearing.10

Plea Bargaining

Perhaps the most consequential uniform rule is titled “Discipline by Consent.” This provision expressly authorizes plea bargaining at any point after the filing of formal charges.11 Hopefully, the introduction of plea bargaining will reduce case backlogs, delays, and the drain on staff resources that lengthy evidentiary hearings can cause. In essence, the plea bargaining rule envisions, (1) a stipulation of facts, (2) conditional admissions as to acts of professional misconduct and the concomitant violation of the Rules of Professional Conduct, (3) a statement of relevant (agreed) aggravating and mitigating circumstances (including prior disciplinary history, if any), and (4) an agreed disposition including, if warranted, monetary restitution as authorized by Judiciary Law §90(6-A).12

Following agreement on a plea bargain, the contemplated procedure resembles that of a traditional resignation. A joint motion shall be made directly to the Appellate Division in which the respondent, by affidavit, conditionally admits the facts set forth in the stipulation; freely and voluntarily consents to the agreed discipline; and acknowledges full awareness of the consequences of consenting thereto.13 The court, in its discretion, may accept or reject the joint motion. If the motion is rejected, then the entire matter is referred back to the committee for a hearing before a referee, and the conditional admissions are deemed withdrawn and cannot be used against the respondent.14

Hearing Advocacy

Absent an agreed disposition, the uniform rule contemplates a contested hearing (“formal disciplinary proceeding”) before a referee,15 followed by motion practice before the Appellate Division, which will then affirm, disaffirm or modify the referee’s report and issue a final determination.16 These procedures are essentially similar to those already in place in three of the four departments. The exception is the First Department, which will no longer be able to utilize hearing panels at an intermediate stage to review the findings and conclusions of the referee and issue a separate determination for consideration on final review by the court.17

Another new feature of the uniform rules is the express consideration—in advocacy before the court—of applicable case law and precedent, as well as reference to the American Bar Association’s Standards for Imposing Lawyer Sanctions (the ABA standards).18 By endorsing advocacy that cites case precedents, the ABA standards, and other relevant factors in determining the level of discipline to be imposed, the courts seem to have recognized that disciplinary decisions should henceforth more closely resemble the First Department’s long tradition of detailed, reasoned opinion as contrasted with the somewhat perfunctory or formulaic determinations often issued in other departments.19

Finally, the uniform rules provide that the referee shall complete the hearing within 60 days from the date of entry of the order of reference.20 However, the rules do not impose a deadline following post-hearing submissions for the referee to file the referee’s report. The Fourth Department had a 60-day time limit in place for the conclusion of the hearing, followed by a 15-day deadline after receipt of the transcript for the filing of post-hearing submissions and, thereafter, a 30-day deadline for the completion of the referee’s report.21 The First Department imposed a 60-day deadline after the conclusion of the hearing for the filing of the referee’s report,22 and, in the author’s opinion, a similar statewide standard would have been welcome.

Conclusion

As noted at the outset, much can be said in praise of the uniform rules, most notably “uniformity” itself. Overall, it appears that the courts worked very hard to adopt the best practices from each of the four departments, as well as adopting many of the recommendations of the Statewide Commission, and established effective rules of other jurisdictions in the United States “plea bargaining” is one such prominent example.

Yet, in the author’s opinion, there are also significant flaws and lacunae in the uniform rules relating to formal proceedings. Specifically, as alluded to above, provisions that more deeply involve the courts in the pre-hearing stages of formal prosecutions will lead, I believe, to unnecessary delays, and displace the authority of referees who can capably and speedily oversee these processes.23

Gaps in the uniform rules are also of concern. Nowhere do the uniform rules address (and standardize) the disparate practices among the departments with respect to allowing oral argument before the court. While provided in the Third and Fourth Departments,24 oral argument is completely unavailable to advocates in the two downstate departments. Nor is any provision made for bifurcation, a laudable practice in the First Department that,25 analogous to criminal cases, mandates determination of guilt or innocence before moving to the sanctioning phase, so that the adjudicator (in this case, the referee) is shielded from unrelated, prejudicial aggravating evidence presented by the committee staff, until a determination has been made that a rule of professional conduct was actually violated.

In short, the uniform rules are a proverbial “mixed bag” with regard to formal proceedings. Only time will tell whether greater procedural fairness results.

Reprinted with permission from the April 1 edition of the New York Law Journal ©2016 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 – reprints@alm.com or visit www.almreprints.com.

1. 22 N.Y.C.R.R. §1240.7(d)(2)(vi). The term “Committee” is previously defined in the uniform rules as follows:

§1240.4 Appointment of Committees

Each Department of the Appellate Division shall appoint such Attorney Grievance Committee or Committees (hereinafter referred to as “Committee”) within its jurisdiction as it may deem appropriate. Each Committee shall be comprised of at least 21 members, of which no fewer than 3 members shall be non-lawyers. A lawyer member of a Committee shall be appointed to serve as Chairperson. All members of the Committee shall reside or maintain an office within the geographic jurisdiction of the Committee. Two-thirds of the membership of a Committee shall constitute a quorum for the conduct of business; all Committee action shall require the affirmative vote of at least a majority of the members present.

2. 22 N.Y.C.R.R. §1240.4 provides, in pertinent part, that two-thirds of the membership of a committee shall constitute a quorum for the conduct of business; all committee action shall require the affirmative vote of at least a majority of the members present.

3. 22 N.Y.C.R.R. §605.7(a) provides that, in the case of recommendations by the Office of Chief Counsel for formal proceedings, the committee chairperson shall designate at least two members of the policy committee, at least one of whom is a lawyer, to review the recommendations.

4. 22 N.Y.C.R.R. §691.4(h) and (i).

5. 22 N.Y.C.R.R. §1022.20(a).

6. 22 N.Y.C.R.R. §1240.8(a)(1).

7. 22 N.Y.C.R.R. §1240.8(a)(1).

8. 22 N.Y.C.R.R. §1240.8(a)(2).

9. 22 N.Y.C.R.R. §1240.8(a)(3).

10. 22 N.Y.C.R.R. §1240.8(a)(5).

11. The uniform rules say nothing about plea bargaining before the filing of formal charges pursuant to §1240.8, but there is no logical reason any such bargaining cannot take place at an earlier stage.

12. 22 N.Y.C.R.R. §1240.8(a)(5)(i).

13. 22 N.Y.C.R.R. §1240.8(a)(5)(ii).

14. 22 N.Y.C.R.R. §1240.8(a)(5)(iii).

15. 22 N.Y.C.R.R. §1240.8(b)(1).

16. 22 N.Y.C.R.R. §1240.8(b)(2).

17. See 22 N.Y.C.R.R. §605.14.

18. 22 N.Y.C.R.R. §1240.8(b)(2).

19. In fact, at least one of those courts has historically even discouraged reference to prior case law or recommendations from below on sanction.

20. 22 N.Y.C.R.R. §1240.8(b)(1).

21. 22 N.Y.C.R.R. §1022.20(d)(1).

22. 22 N.Y.C.R.R. §605.13(q)(3).

23. Examples include: amended or supplemental pleadings are allowed only by leave of the court (22 N.Y.C.R.R. §1240.8(a)(1)), the court shall permit or require only such appearances as it deems necessary in each case (22 N.Y.C.R.R. §1240.8(a)(1)), statements of disputed and undisputed facts and law must be submitted to the court (22 N.Y.C.R.R. §1240.8(a)(2)), disclosure by both parties with respect to any disputed issue of fact must be provided “except as otherwise ordered by the Court” (22 N.Y.C.R.R. §1240.8(a)(3)), and all applications and motions are to be directed to the court (22 N.Y.C.R.R. §1240.8(c)).

24. See 22 N.Y.C.R.R. §806.5; 22 N.Y.C.R.R. §1022.20(d)(2).

25. See 22 N.Y.C.R.R. §605.13(p)(1).

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