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An ethics complaint against attorney John A. Aretakis is raising questions about a disciplinary body’s ability to litigate what amounts to a slander allegation, and the right of an attorney to publicly disseminate a misconduct complaint. Aretakis, a Manhattan and Albany, N.Y., area plaintiffs attorney specializing in clergy abuse cases, this week challenged the 3rd Department’s Committee on Professional Standards. He contends the disciplinary agency has neither the jurisdiction nor the capacity to determine the validity of what at its core is a defamation action. And he also claims, contrary to the committee’s position, that he has a right to make such a complaint public. The dispute stems from comments made by Aretakis at a May meeting of the Coalition of Concerned Catholics of the Albany Diocese, a conservative group that has been critical of the diocesan leadership. At that meeting, Aretakis accused the Reverend Carl A. Urban of numerous sexual improprieties and implicated the diocese and its bishop in a cover-up. Aretakis does not deny making those accusations and has publicly repeated them on several occasions. Reverend Urban contends the allegations are “absolutely false” and defamatory. However, instead of commencing a slander action — which Aretakis dared him to do at the meeting — the priest took his complaint to the 3rd Department’s Committee on Professional Standards. “My purpose is to ask this Committee to investigate the conduct of this man and to protect innocent persons, like myself, from his public pronouncements of vindictive hate and salacious lies,” Reverend Urban said in a complaint that was made public by Aretakis. Often, observers said, an ethics complaint predicated on an underlying tort is left to the Civil Court since a disciplinary panel could then rely on the court action to prosecute a misconduct charge. In the case of Aretakis, the 3rd Department panel has apparently decided to proceed in the absence of a civil action. That means the committee may have to prosecute a defamation case, acting in essence as counsel for the complainant. In his Sept. 27 response to the ethics complaint, Aretakis observes that truth is an absolute defense and notes that the committee cannot find him guilty of misconduct without first finding that he slandered the priest. That, he said, it is neither authorized nor equipped to do. “This Committee does not have the power to in effect litigate or resolve a claim such as Fr. Urban’s, nor is this Committee set up to handle civil suits, nor are violations of any disciplinary rules even alleged,” Aretakis said in his response. Disciplinary Rule 7-102 says that an attorney may not “knowingly make a false statement of law or fact.” However, Reverend Urban does not cite that rule, or any other, in his pro se complaint. Aretakis contends that his comments about the priest are demonstrably true and/or made in good faith, but argues that a disciplinary proceeding is an inappropriate venue to resolve an issue that more properly belongs before a jury. “Since the Committee cannot resolve or even attempt to resolve a slander case, even requesting me to respond to this complaint is additional harassment, and the selective enforcement of the discretionary authority to investigate certain complaints before it,” Aretakis said. Mark S. Ochs, chief attorney for the 3rd Department’s Committee on Professional Standards, declined to address the Aretakis case. However, he said the panel is clearly empowered to investigate matters that are, or could be, the subject of a lawsuit. “If we can establish to the court’s satisfaction that a statement is false, the fact that it may also support a libel or slander claim does not bar us from proceeding until that issue has been resolved in civil litigation,” Ochs said in an interview. “If our investigation discloses proof that something was false, we can proceed on a dishonesty charge.” CONFIDENTIALITY ISSUE Aretakis’ public release of Urban’s complaint raises another issue over whether an attorney can disclose a disciplinary complaint. The 1st and 3rd departments — both of which are presiding over various misconduct complaints lodged against Aretakis — seemingly have different perspectives on that issue. In a July 20 letter advising Aretakis of the complaint, staff attorney Michael G. Gaynor of the 3rd Department’s disciplinary committee said that “all investigations by this Committee are confidential pursuant to section 90(10) of the Judiciary Law.” Earlier this year, the 3rd Department committee lodged a sua sponte complaint against Aretakis for violating �90(10) and publicly releasing details of another complaint involving his conduct in the clergy abuse scandal. But a communication between Aretakis and the 1st Department’s disciplinary committee last December suggested that if a lawyer wants to waive confidentiality, he or she can do so under �90(10). “Although respondents may [waive] confidentiality, the Committee requests that they do not,” Naomi F. Goldstein, a prosecutor with the 1st Department’s disciplinary panel, said in a Dec. 24 letter to Aretakis. That letter, written in connection with a different disciplinary matter pending against Mr. Aretakis, is included as part of the record in the Urban matter. “It is not our intention to become involved in the underlying civil matter that gave rise to this inquiry,” Goldstein wrote. Apparently, the issue of whether an attorney may publicly release a complaint against him or her remains an open question. In his response, Aretakis cites the Court of Appeals’ opinion in Matter of Capoccia, 59 NY2d 549 (1983), where the court said that an attorney may waive confidentiality and insist on an open disciplinary hearing. “The provisions for confidentiality … were enacted primarily, if not only, for the benefit of the attorney under investigation,” the court said in Capoccia, overturning a 3rd Department ruling. However, Capoccia did not address whether an attorney can release a complaint before the lodging of any charge and before any hearing. UNILATERAL ACTION CHALLENGED Ochs said Wednesday that it is the commission’s position that Capoccia applies at the investigatory stage as well as the hearing stage. However, he said it is also the commission’s position that confidentiality cannot be casually waived and that an attorney seeking to open the disciplinary process must first petition the court. “ Capoccia clearly says that once we’ve started a disciplinary proceeding, the attorney has to file a waiver with the Appellate Division and the court, after giving us an opportunity to be heard, will make a decision as to whether confidentiality will be lifted,” Ochs said. “We read Capoccia as saying the attorney can waive it, but the court makes the decision as to whether it will be open. He or she cannot unilaterally make that determination and then go and disclose as little or as much of an investigation as they wish.”

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