Hal R. Lieberman (NYLJ/Rick Kopstein)
On March 30, 2015, Chief Judge Jonathan Lippman announced the formation of a Commission on Statewide Attorney Discipline, to be made up of leaders from New York’s bench and bar (the author was on the commission). The stated mission was to “conduct a comprehensive review of [New York's] attorney disciplinary system to determine what is working well and what can work better, and to offer recommendations to enhance the efficiency and effectiveness of New York’s attorney discipline process.”
This article focuses on the recommendations in the commission’s report, released on Sept. 23, 2015.1 The report principally addresses three major areas of concern with regard to the structure and functioning of the current disciplinary system: (1) uniformity and fairness; (2) efficiency; (3) transparency and access. Accordingly, the commission established three working groups to study these areas of concern and make recommendations with an eye to reform. This column only discusses “uniformity and fairness.” A future column will consider the commission’s recommendations with respect to the other areas of concern.
Uniformity and Fairness
Notwithstanding the broad (even vague) categories of “uniformity” and “fairness,” what the commission actually focused on were practical, concrete issues related to perceived inconsistent outcomes in sanctioning, and whether a need exists for uniform, statewide disciplinary procedures. In regard to the latter, the question also arose as to what procedural rules should be added and, in particular, whether to expand the rights of respondent attorneys to access information and discovery not heretofore available in a disciplinary proceeding statewide.
After wrestling with criticisms that Professor Stephen Gillers forcefully raised at the outset, namely, that gross disparities exist among the departments with respect to sanctions imposed for similar offenses,2 the commission rejected various proposals that would involve legislation amending Judiciary Law §90 and altering the basic departmental framework for adjudication of discipline. Instead, and despite the sense that troublesome disparities in outcome may well exist, the commission concluded that the system is not as broken as Gillers contends. Nor is the more radical solution, i.e., a centralized system with the equivalent of a state bar court modeled on California’s structure, likely to be adopted by the Legislature or, for that matter, endorsed by the bar.
Accordingly, the commission made recommendations for reform that only require approval of the judiciary:
The Subcommittee and full Commission wrestled with the issue of whether there should be, in effect, “sentencing guidelines” to provide the disciplinary bodies with a least a frame of reference in which to administer sanctions. Cognizant that a “one-size-fits-all” approach rarely succeeds, the Subcommittee recommends the adoption of non-binding standards and general guidelines for imposing sanctions; non-binding essentially advisory guidelines are of course inadequate without some expectation that they will be followed. Again, the details—such as what the usual sanction should be for an escrow theft, for a violation of the advertising rules, for client neglect, etc.—should be established jointly by the four Departments of the Appellate Division, with the assistance of the Statewide Coordinator. The Statewide Coordinator of Attorney Discipline should promptly issue a report to the Administrative Board and the public documenting disparities in sanction and recommending guidelines. Going forward, deviations from those guidelines should be explained in the Court’s decisions and orders. That could be accomplished simply by stating mitigating or aggravating factors that warranted a lesser or greater sanction than would be the norm for a particular offense.3
The theory behind adoption of statewide “sanctioning guidelines” is that, if followed, uniform sanctioning outcomes will inevitably evolve. A particularly important aspect of this is the related recommendation that the departments explain any deviations from the norm, for example, significant mitigating or aggravating circumstances. In fact, simply getting the Appellate Divisions to write reasoned opinions in all pubic discipline cases, citing to precedent (as is routine in the First Department), will be a major step forward and should of itself enhance uniformity in outcome.
Appointment of a statewide coordinator for attorney discipline—another significant recommendation of the commission—is also designed to foster uniformity. Thus, the coordinator’s initial tasks will be to more extensively analyze and document sanctioning disparities, with the objective of promulgating statewide sanctioning guidelines modeled on the ABA standards for lawyer sanctions. The commission also recognized that the promulgation and adoption of guidelines will require focused leadership and coordination with the courts and their committees, as well as public input. In at least that regard, appointment of a statewide disciplinary “tsar” will be essential.
The commission’s boldest recommendations concern uniform disciplinary procedure. Right now, there is nearly complete non-uniformity: Each department has its own rules of procedure4 with quite significant disparities in almost every phase of the process. After years of failed attempts by bar committees to harmonize several of the most glaring disparities, the commission, in one fell swoop, has unanimously urged the adoption of statewide uniform procedural rules:
In sum, the Commission recommends approval by the Administrative Board of the Courts, and by each Department of the Appellate Division, of statewide uniform rules and procedures governing the processing of disciplinary matters at both the investigatory and adjudicatory levels, from intake through final disposition, which strike the necessary balance between facilitating prompt resolution of complaints and affording the attorney an opportunity to fairly defend the allegations. These new rules and procedures should include uniform discovery rules and information-sharing for attorneys who are the subject of a disciplinary complaint. This recommendation is of the highest priority and a firm deadline for adoption should be established.5
To reiterate, the recommendation for adoption of a single set of procedural rules statewide is a radical and wholly refreshing departure. Most close observers of the current system would agree that it simply makes no sense that:
• Only some departments provide an opportunity to appear before the court for oral argument on sanctions (or other important issues);
• Only some departments automatically suspend lawyers convicted of “serious crimes” ab initio, while others exercise discretion not to suspend until a full hearing is held;
• Only some departments require court approval for issuance of formal charges, while others do not;
• Only some departments authorize their committees to issue letters of caution, education, or warning, with different disciplinary implications, while others do not.
The foregoing disparities are among the numerous procedural inconsistencies that hopefully will be altogether eliminated if the commission’s recommendations are adopted. Of significance, the commission also recommended explicit, uniform procedures that better protect the rights of attorneys subject to discipline, including reciprocal disclosure of all prior witness statements, disclosure of all statements submitted by a complainant or other source which form the basis for an investigation or are made in the course of an investigation, and harmonization of the rules to insure that the authority to commence a sua sponte investigation does not rest in the chief attorney alone, but must be approved either by a full committee or its chair.
Finally, the commission recommended the adoption of completely new rules to fill certain lacunae. Specifically, it recommended a rule to insure that the bases for jurisdiction and venue take into account the increasing use of the “virtual office” for conducting a practice, and a rule that codifies collateral estoppel procedure in the wake of Matter of Dunn,6 in which the Court of Appeals recently validated the application of collateral estoppel to disciplinary proceedings where there was a prior civil adjudication implicating the Rules of Professional Conduct.
1. Report of the Commission on Statewide Attorney Discipline, September 2015.
2. See Stephen Gillers, “Lowering the Bar: How Lawyer Discipline in New York Fails to Protect the Public,” 17 N.Y.U. J. Legis. & Pub. Pol’y 485 (2014).
3. Report at 47 (emphasis added).
4. See 22 NYCRR Parts 603, 605 [1st Dept.]; 22 NYCRR Part 691 [2d Dept.]; 22 NYCRR Part 806 [3d Dept.]; 22 NYCRR Part 1022 [4th Dept.].
5. Report at 47.
6. Matter of Dunn, 22 N.Y.3d 699, 3 N.Y.S.3d 751 (2015).