Stephen Gillers (Juliana Thomas)
New York’s attorney discipline process is fragmented and inconsistent, lacks transparency and falls far short of its mission to protect consumers from unscrupulous or incompetent lawyers.
So concludes a detailed critique of the system slated for publication in the New York University School of Law Journal of Legislation and Public Policy.
Professor Stephen Gillers, author of the article and an expert on ethics, said there are no uniform standards because discipline is meted out by the four autonomous departments of the Appellate Division, resulting in a patchwork of often conflicting determinations.
Gillers’ study, conducted with research assistant Amy Pont of the class of 2014, suggests that the First Department is by far the strictest, and misconduct there that results in disbarment would yield a suspension in the Second Department. He discovered that the Second Department is considerably more tolerant than its neighbor in Manhattan, and that the Third and Fourth departments are even more lenient.
Additionally, Gillers found that the process works so slowly and remains so secret that legal consumers are left in the dark, as are researchers like himself whose ability to analyze and evaluate the system is hindered by the fact that most of the records are sealed from public view.
In “Lowering the Bar: How Lawyer Discipline in New York Fails to Protect the Public” Gillers said that the court system itself, which has access to all of the records, needs to conduct its own thorough examination, with the aim of “ repairing a broken system.”
David Bookstaver, spokesman for the Office of Court Administration, said neither Chief Judge Jonathan Lippman nor Chief Administrative Judge A. Gail Prudenti have seen Gillers’ article, which is slated for publication in the next week or so. But he said that the issues Gillers raises will be addressed at the next meeting of the Administrative Board of the Courts.
Gillers insists he “did not set out to find fault with New York’s lawyer disciplinary system,” but his research quantifies what other critics have said for decades: New York’s attorney disciplinary process doesn’t work.
Mark Ochs, who worked for the Third Department’s disciplinary committee for 30 years and served as chief counsel for 20 years, said disciplinary reform proposals pop up regularly but “never get off the ground.”
A dozen years ago, the New York State Bar Association hotly debated a proposal that would have opened disciplinary records to the public once a prima facie case was established, and on the condition that the Appellate Division departments adopt uniform standards. At its 2002 annual meeting, the State Bar declined to vote on the proposal, which was vehemently opposed by local bar groups, and instead called for the adoption of statewide rules, which never happened (NYLJ, Jan. 25, 2002).
Ochs predicts that the professor’s recommendations will suffer the same fate as all other reform efforts, and die a quiet death.
“Even if I agreed with a lot of what [Gillers] is saying, I don’t see it happening in New York,” said Ochs, who now heads the professional responsibility and legal ethics group at Tully Rinckey in Albany. “If you create standards, the court will just go out of their way to avoid applying a standard.”
Gillers said in his article that New York’s system is uniquely disjointed.
Although the same Rules of Professional Conduct apply statewide, the application of those standards varies wildly, not only between the departments but also within them, Gillers found by analyzing all 577 public disciplinary opinions issued between 2008 and 2013 and scores of others dating back to the early 1980s. He said there is little rhyme or reason in the way discipline is handled, with “stark differences in the seriousness with which these courts regard the same misconduct, at least when measured by the sanctions they impose.”
For instance, in the First Department conversion of client funds invariably results in disbarment, but in the Second Department the penalty is likely a two-year suspension, according to Gillers’ research.
He also said the Second Department goes easy on tax cheats, censuring lawyers for misconduct that would result in a suspension in the First Department. But he said the First Department is soft on lawyers who are dishonest with their clients rather than the court, “including when the conduct is meant to benefit the lawyer and harm third persons, who may have relied on the lawyer’s integrity.”
Gillers said ethics investigations often drag on for years and cases are kept secret until and unless the Appellate Division decides to impose a public sanction. Nearly every other state opens the process upon a finding of probable cause, or even sooner. But in New York, legal consumers are at a disadvantage, with no way of learning if the lawyer they are considering is under investigation for professional misconduct or even if the attorney has blemished record, Gillers found.
“Forty states open the process on a finding of probable cause,” Gillers said in an interview. “New York doesn’t even open the process on a finding of disciplinary violation unless it leads to public discipline rather than a reprimand or private sanction.”
Gillers acknowledges that Judiciary Law §90(10) requires secrecy, and he recognizes that opening the process would require an act of the Legislature, a tall order with strong opposition from bar groups. But he said even public records are hard to come by and the court system’s attorney registration website (http://iapps.courts.state.ny.us/attorney/AttorneySearch) reveals only whether the lawyer is currently registered, and not whether the counselor has a public disciplinary history.
“There are things you can do without the Legislature or the bar, if you are courageous,” he said. “You could make sure that the website for New York lawyers correctly identifies a lawyer’s disciplinary history. I was astonished to discover that with lawyers who had been suspended and reinstated, all you see on the website is ‘currently enrolled.’”
Gillers said the Second, Third and Fourth departments should follow the lead of the First Department in its disciplinary decisions and explain their determinations in light of similar cases.
“Why should a Manhattan lawyer fare for much worse than an Albany or Buffalo lawyer?” he asked. “There should be some effort at consistency.”
John Rusk, a partner at Rusk, Wadlin, Heppner & Martuscello in Kingston and chairman of the Third Department’s Committee on Professional Standards, acknowledged that there could be some inconsistently between departments. But he said the Third Department strives to be consistent within its jurisdiction.
“We have a general idea, depending on the nature of the complaint, as to what an appropriate disposition is,” Rusk said. “It does vary with every case, depending on a person’s disciplinary history, but I think we are pretty consistent.”
Officials with the departmental disciplinary committees either declined comment or did not respond to inquiries. However, one attorney who formerly held a prominent position with a grievance panel said Gillers’ criticisms are on the money.
“I know things are different in the different departments and the departments have a different view of different violations,” the attorney said. “There are places in the state where you can just about kill your wife and not get in trouble.”
Ochs said it would be impractical to adopt uniform standards.
“What would constitute the standard for disbarment for conversion of client funds? Is it a certain dollar amount? Is it the venality involved? Does it matter if the attorney had personal problems? I just think if you had a standard…you would have the courts stretching to find a rationale when they don’t want to disbar,” he said.
Hal Lieberman, former chief counsel to the First Department disciplinary committee and now a partner at Hinshaw & Culbertson and Law Journal columnist, said Gillers “has done his homework well” and “his article on the shortcomings of New York’s attorney disciplinary system is original and cogent.” Lieberman said that while he disagrees with some of the report’s conclusions, “most of Gillers’ constructive suggestions for reform are worth serious consideration by the bench and bar.”
The professional discipline committees of the New York State Bar and New York City Bar Association have also questioned some aspects of the attorney discipline system, and in a letter to the Administrative Board of the Courts last year urged authorities to adopt a Fourth Department practice in which it publishes details of private sanctions without the name of the offending attorney.
In a joint letter, bar leaders suggested the other three departments should follow the same procedure to provide attorneys with guidance on conduct that may result in a reprimand.
“The general public, and, in particular, the bar, would benefit from learning the basis of the committees’ and courts’ resolution of complaints relating to conduct that is not sufficiently serious to warrant public discipline, but nonetheless is serious enough to justify a private letter of caution or discipline,” the bars said in a 2013 letter signed by Sarah Josephine Hamilton of Scalise & Hamilton in Scarsdale, chairwoman of the State Bar’s Professional Disciplinary Committee and J. Richard Supple Jr., partner-in-charge of the New York office of Hinshaw & Culbertson and chairman of the City Bar’s Committee on Professional Discipline. “This is particularly true where the line between permitted and improper conduct is not clear.”
Gillers said the bars’ proposal would be “a good step, but only a baby step, in the marathon of needed reforms.”