The Appellate Division, First Department, at 27 Madison Ave.
The Appellate Division, First Department, at 27 Madison Ave. (NYLJ/Rick Kopstein)

As of Jan. 18, 2013, thanks to the addition of a rule by the Appellate Division, First Department, the Departmental Disciplinary Committee wields an additional tool for ensuring ethical practice in the First Department: Dismissal with Guidance.

The committee has long enjoyed a robust range of sanctions to seek when evidence reveals substantial attorney misconduct. That range includes nonpublic discipline in the form of private reprimands and letters of admonition. Of course, it also includes public censure, suspension, and disbarment by the court.

But what about that matter in which a committee investigation uncovers troubling facts yet less than clear evidence of an attorney’s outright misconduct?

Or in which the committee deems misconduct too marginal to warrant discipline but wishes to dispel any false sense of assurance or vindication that an attorney might take from a matter’s outright dismissal?

What, in short, of those instances where constructive comment is warranted though formal sanction is not?

For the past 18 years, the committee has had no fully satisfactory response to those situations. Today it does.

Prior to 1994, the rules of the First Department provided for letters of caution. These aimed to warn the attorney who had pushed the envelope but had not quite warranted discipline.1

Until 1992, these letters of caution did not count as any kind of mark on an attorney’s disciplinary record. The rules explicitly declared the letter of caution “not a discipline.” A prudent attorney would pay heed. Nonetheless, in the event of subsequent allegations of misconduct, a letter of caution played no role in ascertaining either the validity of those allegations or the appropriate sanction if the allegations proved true. Then the honey-to-vinegar ratio shifted; the letter of caution took on new bite.

Specifically, between 1992 and spring of 1994, a letter of caution (then issued) would count against an attorney as the committee recommended, and the court ultimately determined, the sanction for established subsequent misconduct. The rules still classified the letter of caution as “not a discipline.” Even so, now the letter threatened to play a formal role in an attorney’s disciplinary future.

With this change arose due process concerns. For, yes, the recipient of a letter of caution could request reconsideration or insist the recipient’s letter in response be kept in the relevant complaint file, presumably for reference in the event of deliberations over sanction for some future misconduct. Still, the recipient of the letter of caution had no right of appeal. He could only strive to avoid the circumstance where the letter of caution would weigh against him. Not a bad thing.

In May 1994, the court, in apparent response to these genuine due process concerns, amended its rules and eliminated the letter of caution entirely.

This commendably simplified things yet left the committee without a middle ground. It could dismiss a matter or pursue discipline. Certain complaints, along with some committee sua sponte investigations, still led into gray areas, but there was no instrument especially designed to navigate such foggy borderlands.

The dismissal with guidance is now that instrument.

A Helpful Development

Ten words brought the dismissal with guidance into the world. To those recommendations my office, the Office of Chief Counsel, could make to the committee upon an investigation’s completion, Presiding Justice Gonzalez’ Jan. 18 order added: “dismissal with guidance (with an indication of the reason thereof)”. Rule 605.6(e)(2).

The Office of Chief Counsel’s other recommendation options remain in place: “referral to another body on account of lack of territorial jurisdiction,” Rule 605.6(e)(1); “dismissal for any reason (with an indication of the reason therefor),” Rule 605.6(e)(2); “admonition,” Rule 605.6(e)(3); and “formal proceedings before a hearing panel,” Rule 605.6(e)(4).

Just as a letter of caution was not “discipline,” neither is a dismissal with guidance. And, like the pre-1992 letter of caution, no dismissal with guidance will ever disadvantage the recipient in a subsequent disciplinary proceeding.

More concretely, a dismissal with guidance may well contribute to my staff’s, or to the committee’s, frame of reference during initial assessment of a new complaint. A dismissal with guidance will never, though, weigh against an attorney as hearing evidence of misconduct. Nor will it stand as an aggravating factor where an attorney’s wrongdoing has been demonstrated and only the appropriate sanction is contested.

In this latter respect, of course, a dismissal with guidance fundamentally differs not only from the post-1992 letter of caution but from the current letter of admonition. A letter of admonition will indeed garner consideration when the committee or the court works to find the proper sanction for the attorney found culpable of misconduct. Because of this potential harm, the admonished attorney may either request reconsideration or reject the admonition and insist that formal charges be brought.

And, precisely because a dismissal with guidance does not carry the same hazard for the recipient as a letter of admonition, a dismissal with guidance does not carry the same procedural safeguards for the recipient.

To be sure, a dismissal with guidance may not issue absent a committee member’s approval of my office’s recommendation. In that, the dismissal with guidance is the same as virtually any other dismissal. Once a dismissal with guidance is approved and issued, however, the committee will undertake reconsideration only at the behest of a complainant who makes a timely request.2

A dismissal with guidance is, otherwise, not susceptible to reconsideration, appeal, or other challenge. After all, it is essentially a dismissal.

While I cannot speak for the court or the committee, I would not suggest engaging in the conduct used as examples below expecting, at worse, a dismissal with guidance. Every case is different. The committee and the court may decide to impose discipline in seemingly similar circumstances.

The committee will ultimately determine how frequently, and under what circumstances, dismissals with guidance will be issued. Over time, patterns will form and settle. Meanwhile, over 150 attorneys have received dismissals with guidance since the rule was adopted. They include, for example:

• An attorney whose retainer agreement included language that might be construed as providing for a non-refundable fee arrangement in violation of Rule 1.5(d)(4).

• An attorney who advertised that “all attorneys” in his firm had “more than 40 years experience in immigration.” In fact, in the aggregate, the experience of the firm’s attorneys came to 40 years. The advertisement, however, arguably suggested that each firm attorney had been practicing immigration law for 40 years, thus raising concerns under Rule 7.1(a)(1).

• An attorney whose escrow account checks were twice dishonored. Investigation uncovered no evidence of commingling, misappropriation, or checks written to cash. It did reveal, though, failures to maintain both proper bookkeeping records and a ledger, notwithstanding Rule 1.15(d)(1)(i) and Rule 1.15(d)(2).

• An attorney whose letter of engagement/retainer agreement ran afoul of 22 NYCRR Part 137 and NYCRR 1215 by neglecting to include language about fee disputes and mandatory fee resolution programs.

• An attorney whose world travels had him urge the committee to communicate with him by email. This urging raised concerns as to clients’ ability to reach the attorney and the attorney’s communication obligations under Rule 1.4.

• An attorney who needlessly disparaged his client when seeking to be relieved by a sentencing court. Despite rule 1.1, the attorney stated that his client had screamed at him and that the attorney refused to abide such treatment by anyone. These statements were volunteered rather than the fruit of court inquiry.

• An attorney who, writing for her consulting firm employer, identified herself with an “Esq.” after her name and as a member of a “Legal Team.” These choices of appellation created the appearance of the attorney’s assisting in the unauthorized practice of law in violation of Rule 5.5(b).

Conclusion: Heads Up!

Think of a dismissal with guidance as one part education and one part forewarning. Think of it by the light of parallels outside the practice of law:

• You go to your doctor with chest pains. After tests and examination, she tells you it was just indigestion. She adds, however, that your climbing cholesterol suggests that you might very well benefit from less fat intake and more exercise.

• Your accountant finishes your tax returns. She informs you that your quarterly withholdings were adequate. But, stepping back, she urges you to increase withholding in the coming year.

• You roll up to a DUI checkpoint. After inquiry and observation, the police officer waives you through. First, however, the officer reminds you that your inspection sticker is a day from expiration.

In each instance, the cautionary advice merits one’s earnest attention, whether or not one has intentionally done anything to draw the cautionary advice. So too with a dismissal with guidance.

Some attorneys, thankful for the committee’s constructive counsel, will gratefully accept a dismissal with guidance. Some may bristle at a perceived shot across the bow. None should ignore it.

The committee will not dispense a dismissal with guidance lightly. No recipient should take it lightly either.

Endnotes:

1. The letter of caution remains a tool of the disciplinary committees in the Second, Third, and Fourth Judicial Departments. 691.6(a) and 691.(c), Supreme Court, Appellate Division, Second Department; 806.4(c) (1)(iii); 806.4(c) (3); 806.4(c) (4); 806.4(c) (5), Supreme Court, Appellate Division, Third Department; 1022.19(d)(2)(iv); 1022.19(d)(3), Supreme Court, Appellate Division, Fourth Department. More, in the Third Department, there exists one additional tool for handling disciplinary complaints: the letter of education. 806.4(c) (1)(iv).

2. The complainant whose complaint is dismissed outright or dismissed with guidance is notified in writing and given 30 days in which to request the committee’s reconsideration.