Is New York’s Disciplinary System Truly Broken?

In a recently published law review article, “Lowering the Bar: How Lawyer Discipline in New York Fails to Protect the Public,”¹ Stephen Gillers examines attorney discipline through the prism of 577 published disciplinary opinions that he painstakingly reviewed. Gillers’ conclusions and observations are assuredly troubling for a regulatory system that presumably exists to protect clients and at the same time preserve the rights of lawyers who receive complaints.

Gillers’ principal findings are that: the system is wracked by untenable delays; significant unjustifiable disparities exist among the four departments when it comes to imposing sanctions for essentially the same conduct; the severity of discipline imposed in view of the underlying violation is too often irrational; and the public is not accorded adequate access to the disciplinary histories of New York lawyers. This article will address these points.

Delay

There can be little dispute that lengthy, unwarranted delays undermine the disciplinary system’s primary goal of protecting the public from unfit lawyers. Gillers’ evidence of extraordinary delays that harm the public is irrefutable. Almost as if on cue, the First Department issued a decision in June, Matter of Mark R. Colodne,² disbarring an attorney who ran what amounted to a Ponzi scheme in Florida. Notably, the victim first complained about the theft of her life savings in 2007, yet it took seven years to revoke the lawyer’s license, during which time the lawyer continued to practice law while remaining well-positioned to harm other victims as well.

But delay in adjudicating the most serious cases is only part of the story. The other side of the coin is the inordinate gaps between the date a complaint is served on a lawyer and an ultimate disposition dismissing, cautioning, or imposing minor discipline (parenthetically, an overwhelming majority of the cases). It should not take years to issue an admonition, caution, or dismissal notice, but often that is the case. This exasperates complainants and lawyers alike, who hear nothing for long periods and perceive either that their complaint is being ignored or, in the case of lawyers, that they must suffer the indignity and collateral consequences (increased malpractice insurance, the prevention of a lateral move) of a pending disciplinary matter involving allegations of minor misconduct.

A number of factors contribute to delays. While the First Department has tried to address the problem by adopting fairly strict time deadlines in formal proceedings,³ its rules do not deal with how much time can be spent on pre-charges investigations or the imposition of informal disciplinary sanctions, which are estimated to account for more than 85 percent of all complaints. And of course the courts are not restricted in their own deliberations, which may often consume months (even for emergency motions or for uncontested matters such as acceptance of resignations, unanimously approved reinstatements, and the like).

Clearly, lengthy delays in disposing of meritless complaints, and the lack of communication that invariably occurs during the interim, cannot enhance either the public’s perception of the bar regulatory system nor the bar’s own confidence in it.

In addition to the courts promulgating stringent (or more stringent) time deadlines to promote speedier dispositions, the disciplinary and grievance committees should consider adopting their own internal standards (at least for the resolution of low-level complaints), improved case management systems, tighter supervision of work flow, and a rigorous screening system that weeds out meritless complaints at a very early stage in the process. These proposals are not novel or hard to implement.

Uneven Sanctions

Gillers, Elihu Root Professor of Law at New York University School of Law, also complains about regional disparities in sanctions, and discipline that seems to have little relationship to the severity of the conduct at issue. He points, for example, to a case where a lawyer was disciplined more harshly for a physical altercation unrelated to the practice of law than a different lawyer who had lied to the court. The criticisms are hardly a revelation for those who practice in the disciplinary field in New York, but Gillers carefully documents a number of such examples.

Obviously Gillers is right, but achieving greater consistency is complicated. Whether due to cultural differences, non-uniform procedural rules and informal policies, or other factors, there is no practical solution on the horizon. Unfortunately, the Court of Appeals’ assumption of ultimate, centralized authority is not a realistic solution. Even if the Court of Appeals were inclined to take over New York’s disciplinary system, the governing statute-Judiciary Law, Section 90-would need to be substantially amended, an unlikely prospect. Nor have the Appellate Divisions shown any interest in comprehensively overhauling the rules of procedure in the four departments, or supporting standardized sanctioning guidelines, both of which actions, by no means panaceas, might result in greater consistency and rationality.

In short, absent a single, final authority to establish binding precedent, the Appellate Divisions will continue to be unbound by any higher authority and for the most part will pursue their own jurisprudence when it comes to imposing discipline.

Lack of Public Information

Gillers’ assertion that consumers of legal services lack reasonable access to New York lawyers’ disciplinary histories may be overstated. While the Office of Court Administration’s (OCA) website could well include the public disciplinary records of New York lawyers, it is not mandated under Judiciary Law 468-a,⁴ and in this age of Google it is not inordinately difficult for any prospective law client to access a lawyer’s public disciplinary information on the Internet. If that is not the case, then it is fair to suggest that OCA or each department establish a website containing such histories. There should be no need for a Lexis or Westlaw subscription.

Gillers’ other points, about lifting the secrecy bar as to private discipline, and opening the formal disciplinary process to the public once “probable cause” is found, are longstanding recommendations that also will require New York State Bar Association support and legislative approval, neither of which is realistically in the forecast. To its credit, the Fourth Department publishes summaries of its private admonitions and cautions, as did the First Department a number of years ago.

In any case, it is debatable whether eliminating “private” discipline, or providing public access to disciplinary proceedings at an early stage in the process, will improve the overall functioning of the system. “Transparency” is easy to advocate for, but privacy and reputational rights must also be considered, as well as the effect on formal proceedings if the press is invited to attend.

Resources

Gillers has not focused much on resources, but in my view the lack of adequate funding is a significant factor in the poor performance that he identifies throughout his article. Every New York lawyer is required by Judiciary Law Section 468-a to pay a biennial registration fee of $375. With a registered in-state lawyer population of 169,756, and a total of 288,965 if one also includes out-of-state New York lawyers, in 2012 OCA received $48.2 million in registration fees.⁵ According to law, this is a “dedicated” fund; of the $375 fee, $60 is allocated to the Lawyers’ Fund for Client Protection, $75 for indigent legal services, and the remainder, or $240, for the “attorney licensing” function, i.e., to support the State Board of Law Examiners, the Character and Fitness Committees, the disciplinary and grievance committees, and the attorney registration system.⁶

How much of that $240 “pot” (approximately $30 million) is spent on the disciplinary system appears subject to the discretion of the administrative board of the courts, but the bottom line is that in the First Department, for example, out of a staff of 48, 14 positions have been lost in the past four years (due to retirements and resignations), including six staff attorneys, without a single replacement authorized in the budget. This is intolerable for an agency required to process nearly 4,000 complaints per annum and having jurisdiction over a lawyer population in excess of 95,000.

While adequate funding will not alone solve the major problems that Gillers identifies, more money, stricter judicially imposed time limits, better internal management, including aggressive screening of frivolous or meritless complaints at an early stage, and a commitment to greater procedural and substantive uniformity, will certainly help.

Hal R. Lieberman, formerly chief counsel to the Departmental Disciplinary Committee (First Department), is a partner at Emery Celli Brinckerhoff & Abady.