New Rules for Attorney Disciplinary Matters: Informal Proceedings

As noted in my last column, major changes are coming to attorney discipline. The new statewide rules governing attorney disciplinary procedures, which were originally scheduled to take effect on July 1, 2016 (the new “uniform rules’), are now set for implementation as of Oct. 1, 2016. The previous column focused on formal proceedings, or, as the uniform rules describe, “Proceedings in the Appellate Division.” In this column, I will address informal discipline, or as the uniform rules put it, “Proceedings Before Committees.” But first, a very brief overview.

Informal discipline is simply another way of saying that a committee has determined, after investigation, to impose a private, confidential sanction upon a lawyer who violated, or came close to violating, a Rule of Professional Conduct (RPC), but the infraction was not so serious as to warrant charges, a formal proceeding, and potential public discipline. Committees generally impose informal discipline by forwarding a “letter” to the attorney.

Under the former Departmental rules, informal discipline took a number of forms—Letters of Admonition, Letters of Caution, Letters of Education, and Letters of Dismissal with Guidance—depending on which department was administering the sanction.¹ The process by which a committee imposed informal discipline, as well as appellate remedies and how an informal disciplinary sanction might be utilized in a subsequent disciplinary proceeding, also varied by department. A major accomplishment of the uniform rules has been to achieve statewide simplification and uniformity concerning informal discipline, which now takes only two forms: Admonitions and Letters of Advisement.

Now, following completion of an investigation of the complaint, with such appearances as the committee may direct, the committee may take one of the following actions: (i) dismiss the complaint for any reason by letter to the complainant and to the respondent; (ii) when it appears that the 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 the rules; (iv) issue an Admonition or Letter of Advisement; or, (v) authorize a formal disciplinary proceeding. 22 NYCRR §1240.7(d)(2)(i), (ii), (iii), (iv), (v), and (vi).

Admonition

An Admonition is discipline issued at the direction of the committee or the court pursuant to the uniform rules, where the respondent has engaged in professional misconduct that does not warrant public discipline by the court. An Admonition constitutes private discipline. It must be in writing, may be delivered to a recipient by personal appearance before the committee or its chairperson, and may be considered by a committee or the court in determining the action to be taken or the discipline to be imposed upon a subsequent finding of misconduct. 22 NYCRR §1240.2(a); 22 NYCRR §1240.7(d)(2)(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, the committee may transmit a written Admonition to the respondent, which clearly states the facts forming the evidentiary basis for such finding, and the specific rule or other announced standard that the respondent violated. Prior to the imposition of an Admonition, the committee gives the respondent 20 days’ notice by mail of the committee’s proposed action and, at the respondent’s request, provides the respondent an opportunity to appear personally before the committee, or a subcommittee thereof, to seek reconsideration of the proposed Admonition. 22 NYCRR §1240.7(d)(2)(v).

The uniform rules mandate that, as may be permitted by law, the committee must provide the complainant with a brief description of the basis of any disposition of a complaint. When the committee issues an admonition, the respondent may, within 30 days after its issuance, make an application to the court, on notice to the committee, to vacate the Admonition. Upon such application and the committee’s response, if any, the court may consider the entire record and take whatever action it deems appropriate. 22 NYCRR §1240.7(d)(3) and (e)(2).

This is a radical change. Only in the Third Department, prior to this rule change, was it possible for an aggrieved respondent to seek judicial (as opposed to committee) review of an admonition. 22 NYCRR §806.4(c)(4).

Letter of Advisement

A Letter of Advisement is administered by the committee, without a hearing, 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. Upon receipt or initiation of a complaint of professional misconduct, the committee, after investigation but without a hearing, may conclude the matter by issuing a Letter of Advisement. A Letter of Advisement is confidential and does not constitute discipline, but may be considered by a committee or the court in determining the action to be taken or the discipline to be imposed upon a subsequent finding of misconduct. 22 NYCRR §1240.2(i); 22 NYCRR §1240.7(d)(2)(iv).

The respondent may file a written request for reconsideration with the chair of the committee, with a copy to the Chief Attorney, within 30 days after the committee issues a Letter of Advisement. The rules do not permit oral argument of the request. The chair has the discretion to deny reconsideration, or refer the request to the full committee, or a subcommittee thereof, for whatever action it deems appropriate. Within 30 days of the committee’s final determination denying the request for reconsideration, the respondent may seek review of the Letter of Advisement by submitting an application to the court, on notice to the committee, upon a showing that the committee issued the letter in violation of a fundamental constitutional right. The respondent has the burden of establishing the violation of such a right. Again, this is a major departure, injecting the court into what heretofore has been an exclusively committee-level process. 22 NYCRR §1240.7(d)(1)(ii) and (e)(1)(i).

Conclusion

The new uniform rules concerning informal discipline greatly simplify, and standardize throughout the state, the categories of, and procedures attendant to imposition of, private discipline. While uniformity is laudable, at the same time there should be concern that built into the new process is the potential for substantial delays, and increased litigation, as a consequence of the provision allowing respondent attorneys to seek judicial review of Admonitions and Letters of Advisement from the Appellate Divisions. Of course, it remains to be seen how frequently the disciplinary defense bar will seek such review, given the inherent risk of a more severe consequence for the lawyer once the court reviews the record and “takes whatever action it deems appropriate.”