Hal R. Lieberman (NYLJ/Rick Kopstein)
My last column focused on two aspects of the New York State Commission on Statewide Attorney Discipline’s recently released report recommending various reforms: uniformity (consistency) and fairness.1 This column considers additional recommendations described in the report as “fostering efficiency” in our disciplinary system. Translation: addressing perceived, undue delays.2
As discussed in my last column, on March 30, 2015, then 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.” Accordingly, to study and make recommendations for reform as to the structure and functioning of the current disciplinary system, the commission established subcommittees on: (1) uniformity and fairness; (2) transparency and access; and, (3) enhancing efficiency.
The Subcommittee on Enhancing Efficiency evaluated how to achieve dispositions in attorney disciplinary matters fairly and efficiently so as to provide closure to both attorneys and complainants. Because of inherent limitations in the methodology of its evaluation, the subcommittee steered clear of a definitive finding that there are in fact “unjustifiable” delays in processing disciplinary complaints, even if one takes into account legitimate “due process” concerns.3 Nonetheless, the subcommittee presented evidence demonstrating, beyond dispute, that disciplinary investigations and proceedings in New York generally take a long time, and the subcommittee reported that “[r]emedies suggested by witnesses and other proof indicate that there are several potential causes of undue delay in the disciplinary process,” which potential remedies the subcommittee listed and described.
The subcommittee also suggested, and it is apparent, that unwarranted delays hurt consumers of legal services, have negative consequences for lawyers who are the subject for bar complaints, and harm the public’s perception of the bar. This is partially because most complaints are eventually dismissed, or resolved without public discipline, but in the meantime—while a complaint is pending—the complainant becomes frustrated and disillusioned and the lawyer lives with the proverbial “Sword of Damocles” hanging over the lawyer’s head. Career moves can be stymied, costs are incurred, and the emotional toll can be substantial.
The commission’s proposed remedies for untoward delay (if it exists) include the following:
• Additional funding and staffing.
• Greater latitude for “plea bargaining.” In this connection, it should be noted that the courts in New York have never permitted “plea bargaining” in the attorney disciplinary process. The Subcommittee on Enhancing Efficiency encouraged the adoption of procedures whereby, after a disciplinary or grievance committee determined that formal proceedings are warranted, the parties may agree on a statement of facts, enter into a “plea bargain” to resolve charges of misconduct, or agree on a proposed sanction. The subcommittee’s report suggested that such procedures would remove lower level offenses from the time-consuming and expensive process of resolving contested matters.
• Mandatory document disclosure and exchanges at an early stage. Discovery in New York’s disciplinary system has been basically a one-way street. As a practical matter, the respondent’s counsel is rarely given the opportunity to depose witnesses or require the production of documents. Rather, although an attorney under investigation can informally contact and interview potential witness, the attorney is, in practice, otherwise precluded from conducting any meaningful prehearing discovery. However, the subcommittee’s report noted that information sharing early in an investigation could reduce disputed issues of fact, thus removing another procedural impediment to the efficient resolution of disciplinary complaints.
• Enhanced screening and early dismissal of frivolous or meritless complaints.
• Expedited procedures to suspend attorneys for failure to cooperate with disciplinary investigations. Significantly, the First and Second Department rules, in contrast to those of the Third or Fourth Departments, bestow much broader powers on the disciplinary and grievance committees to seek an attorney’s interim suspension on the basis of alleged “non-cooperation.” Moreover, the First Department rules, unlike those of the other Departments, add an additional basis for an interim suspension, to wit, an attorney’s willful failure or refusal to pay money owed to a client (where the debt is demonstrated by an admission, a judgment, or some other clear and convincing evidence).
• Better internal case management requiring status reports by staff counsel as to investigations of over one year.
• Streamlining procedures for what are, in essence, “ministerial” proceedings, such as: reciprocal discipline, felony disbarments, resignations and uncontested applications for reinstatement.
• Revised court rules to relieve the disciplinary committees of the burden of prosecuting lawyers who fail to abide by the registration requirements of Judiciary Law §468-A, resulting in administrative suspensions.
• A statewide reporting requirement for judges and district attorneys who become aware that a lawyer has been convicted for a crime.
• Utilizing volunteer, pro bono counsel to prosecute certain complex disciplinary cases.
• For the First Department, “re-evaluating” its two tier hearing process that utilizes hearing officers and, subsequently, review by hearing panels (each of the other Departments provides for hearings conducted by hearing officers followed by direct Appellate Division review).4
Delays should be analyzed from two perspectives: (1) delays in disposing of complaints that have little or no merit and are likely to result in dismissal or a private and confidential Letter of Advisement or Admonition; and (2) delays in prosecuting serious cases warranting public discipline. The commission’s recommendations generally address both contexts.
As for disposing of meritless or minor complaints, the principal remedies would appear to be rigorous, early screening and strict internal guidelines (which could be set forth in uniform, statewide rules) specifying how much time can be spent on investigations of matters not likely to result in formal charges: i.e., dismissals, Letters of Advisement or Admonitions. Exceptions can be permitted when explained (justified) in writing by the staff person assigned to the case, and approved by a supervisor. Internal time standards, improved case management, and tighter supervision of case flow are the obvious keys here.
Delays in prosecuting serious cases constitute a thorny problem. A number of factors cause these delays, including the simple fact that certain cases are complex, difficult to investigate, and take a long time. Court rules setting forth deadlines in formal proceedings might help; but here additional resources are probably more essential. The use of volunteer, pro bono prosecutors, as the First Department employed a number of years ago, could be of significant benefit.
Several of the commission’s other recommendations will also enhance efficiency in serious cases, particularly the adoption of “plea bargaining” as a permitted procedure. Early and increased use of the “interim suspicion” tool5 in escrow/misappropriation cases (in which New York lawyers are subject to suspension on an interim basis, without formal charges and an evidentiary hearing, premised on proof of immediate danger to the bar and public) or where noncooperation occurs, and greater employment of collateral estoppel, ought to likewise speed up the handling of serious cases while providing sufficient “due process” if such procedures are employed fairly and carefully.
In the end, and whether or not New York’s disciplinary committees receive more resources, much will still be accomplished if the courts and their committees adopt and fully implement the commission’s worthy recommendations on enhancing efficiency.6
1. The commission’s Report was released on Sept. 23, 2015. On Dec. 29, 2015, the Office of Court Administration announced the adoption of new uniform attorney discipline rules, promulgated as Part 1240 of the Rules of the Appellate Division, 22 NYCRR Part 1240, which will take effect on July 1, 2016. The new rules embody some, but not all, of the reforms recommended in the commission’s report. Subsequent columns will focus on the new rules.
2. There is no bright-line definition for “undue,” “unjustified,” or “unwarranted” delay. In essence, such terms generally reflect lengthy delays that cannot be explained by a corresponding complexity in the underlying matter.
3. To determine whether undue delay exists in the disciplinary process, the subcommittee considered: written submissions from numerous bar leaders, attorneys and legal services consumers; testimony received during hearings held by the commission; and, data collected from the four Departments with respect to disciplinary matters that resulted in a final order of sanction during the period 2012-2014. The average total days for all matters from the date of opening of an investigation through final order was 856 days. However, because the data the subcommittee received did not correlate the total time with the relative “complexity” of the underlying matters, the subcommittee was reluctant to conclude that the data established that “undue” delay exists, notwithstanding that the average total time was considerable.
4. Among the four Departments, only the First Department provides a procedure for intermediate administrative review of a referee’s report by designated hearing panels. Hearing panels have “the power and duty to review the referee’s report and recommendation and to make such determination as it may deem appropriate.” 22 NYCRR §605.22(2)(b)(1). After the referee issues a report and recommendation, the staff attorney and respondent have the opportunity to present oral argument and written submissions to the hearing panel. The hearing panel may then confirm, modify, or disaffirm the report and recommendation. 22 NYCRR §605.14(g)(1). For a more detailed commentary, see Hal R. Lieberman, et al., New York Attorney Discipline: Practice and Procedure (New York Law Journal Books/ALM Media 2014) (updated for 2016).
5. Since 1986, and the landmark Court of Appeals case authorizing interim suspensions, Matter of Padilla, 67 N.Y.2d 440, 503 N.Y.S.2d 550 (1986), New York lawyers have been subject to suspension from practice on an interim basis, without formal charges and an evidentiary hearing, premised on proof of immediate danger to the bar and public. Evidence of such immediate danger can be shown in one of the following ways: (1) noncooperation with the disciplinary agency; (2) a substantial admission under oath that the attorney has committed an act of serious misconduct; (3) other uncontested evidence of serious professional misconduct; and, in the First Department only, an attorney’s willful failure or refusal to pay money owed to a client, which debt is demonstrated by an admission, a judgment, or other clear and convincing evidence. See 22 NYCRR §603.4(e) [First Department]; 22 NYCRR §691.4(l)(1) [Second Department]; 22 NYCRR §806.4(f) [Third Department]; 22 NYCRR §1022.20(d)(3)(d) [Fourth Department]. See also Hal R. Lieberman, et al., New York Attorney Discipline: Practice and Procedure (New York Law Journal Books/ALM Media 2014) (updated for 2016).
6. Although the courts did not adopt all of the commission’s recommendations, some of the newly adopted rules will foster efficiency in the attorney discipline process by the inclusion of provisions for notifying the accused lawyers earlier in the course of an investigation, opening new ways for lawyers to get information about their cases, granting greater latitude for “plea bargaining,” expanding opportunities for lawyers to be diverted into monitoring programs after complaints related to substance abuse, and terminating the First Department’s two tier hearing process that currently mandates review by hearing panels of hearing officers’ findings, conclusions and sanction recommendations.