Muldoon, Getz & Reston

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Disciplinary Process in the Fourth Department
Gary Muldoon
Muldoon & Getz
Rochester, NY

(585) 262-5130
www.muldoongetz.com


In the Fourth Department, there are four levels of discipline that can be taken against an attorney. One of these is private in nature, the other three are public. In increasing degree of seriousness, the disciplinary actions are: letter of admonition, censure, suspension and disbarment. 22 NYCRR Part 1022.17 et seq.


Letter of caution

Separate from these forms of discipline is the letter of caution, which is not disciplinary action. The letter of caution is issued when an attorney has engaged in inappropriate behavior that does not constitute professional misconduct. § 1022.19(d)(2)(iv). The letter of caution is not issued by the committee itself; a letter of caution can be issued by the chief attorney of the grievance committee, upon approval of the chair of the district committee.


Letter appeal from letter of caution

While a letter of caution is not disciplinary action per se, an appeal may be taken from a letter of caution within 30 days of the date of the letter. The subject attorney files a letter stating the objections to the letter of caution. The “letter appeal” is directed to the chair of the district committee, and served on the chief attorney. The chief attorney may file a reply within 10 days. Oral argument is not permitted. The committee decides the appeal. § 1022.19(d)(3)(i). There is no further appeal by either side.


While a letter of caution, as noted, is not a form of discipline, issuance of a letter of caution may be considered in a later disciplinary proceeding as an aggravating factor.


Letter of admonition

More serious is a letter of admonition, which is a form of disciplinary action. This occurs after a lawyer has been invited to appear before the Grievance Committee. In such a situation, it is probably worthwhile for the lawyer in question to obtain by counsel.


While a letter of admonition is confidential, this form of discipline remains on the lawyer’s record and may affect later disciplinary proceedings. If a client is notified of this type of action being taken, the letter to the client does not refer to the attorney by name.


Letter appeal from letter of admonition

An appeal from a letter of admonition is made to the chairs of the three district grievance committees (Fifth, Seventh and Eighth districts). A letter appeal is to be filed within 30 days of the date of the letter of admonition; the chief attorney responds within 10 days. Oral argument is permitted in the discretion of the chairs. § 1022.19(d)(3)(ii).


Public sanctions against attorneys

Public censure is the next level of disciplinary action; suspension is the level after. The most serious level of disciplinary action, of course, is disbarment. All of these forms of discipline are public.


For formal disciplinary proceedings to take place, the grievance committee must find probable cause to believe that an attorney has engaged in professional misconduct. The chief attorney makes a presentation to the grievance committee with a written recommendation. The subject attorney receives a copy of the written recommendation and is afforded an opportunity to appear before the committee and respond to the charges. If a majority of the committee then present approves the filing of charges, formal proceedings are instituted against the attorney. § 1022.20.


Where an attorney is convicted of a “serious crime,” as defined in Judiciary Law § 90(4), the case does not proceed through the committee process; instead, the conviction is filed in the Appellate Division and proceeds via an order to show cause. If the conviction is a felony, automatic disbarment occurs.


Commencement of formal charges

With formal disciplinary charges, a notice of petition and petition are filed with the Appellate Division against the attorney. An original petition and five copies are filed; one copy is served on the attorney. The case is returnable on the second Tuesday of the next scheduled term of the Appellate Division. Service occurs as provided by Judiciary Law § 90(6), at least 20 days before the beginning of the term of the court. § 1022.20(c)(1). The subject attorney is to appear on the return date and any date thereafter. § 1022.20(c)(2).


The attorney is to file a verified answer and five copies, with proof of service of one copy on the legal staff. Service of the answer is to be made within 20 days of service of the petition. § 1022.20(c)(3).


The formal disciplinary proceeding is in effect a special proceeding, with pleadings, and discovery as limited in CPLR article 4, e.g., notice to admit. The attorney’s verified answer may include information in mitigation. If the lawyer denies the conduct and the Appellate Division finds that the answer raises a material question of fact, the case is assigned for factual findings to a supreme court justice or a referee, usually a judicial hearing officer, i.e., a former judge. § 1022.20(d)(1). In situations where a referee is appointed, the initial appearance before the Appellate Division does not take place.


Hearing

The hearing is to be completed within 60 days of the order of reference. The parties shall make final submissions, including any proposed findings of fact, within 15 days of the date that the hearing’s stenographic minutes are completed. The referee’s report is to be completed within 30 days after the stenographic minutes. The hearing officer makes a report with findings of fact, but does not include a recommendation. § 1022.20(d).


After the hearing, either party may move to affirm or disaffirm the recommendations of the referee. The attorney is required to personally appear and offer mitigating evidence, or may in writing waive the privilege to appear, which rarely occurs. § 1022.20(d)(2).


The Appellate Division decides what discipline is to be imposed.


Structure and duties of grievance committees

In the Fourth Department, there are three separate grievance committees, one for each judicial district: Fifth, Seventh and Eighth. Each committee is composed of 21 members, including three nonlawyer members. Members are appointed for terms of three years. § 1022.19(a).


The grievance committees’ duties are to consider and investigate allegations of misconduct by an attorney practicing in the district; to supervise the staff attorneys practicing before the committee; appoint subcommittees to assist in investigations; refer cases directly to the Appellate Division when prompt action is necessary or an attorney is convicted of a crime reflecting on the attorney’s fitness to practice law; and to maintain reports concerning all matters before the committee. § 1022.19(b).


Structure and duties of legal staff

The legal staff of the Fourth Department grievance committees is composed of a chief attorney as well as staff attorneys. 22 NYCRR § 1022.19( c).


Upon receipt of a written complaint, an investigation may be commenced. The staff has both investigative and prosecutorial functions.


The duties of the legal staff are to investigate allegations of attorney misconduct. Staff are authorized to request a response to a complaint, the response to be provided within 14 days. A copy of the response may be provided to the complainant. Also, to interview witnesses and obtain records and reports to determine the validity of a complaint. Additionally, to direct the subject of the complaint to appear before the legal staff for a formal interview or an examination under oath. § 1022.19.


The chief attorney may apply to the Chief Clerk of the Appellate Division for a subpoena duces tecum, e.g., upon the attorney or for bank records. The subpoena, if issued, is in the name of the presiding justice and may be made returnable before the legal staff.


Minor matters may be referred to a local bar association committee, upon notice to the complainant and the attorney. § 1022.19(d)(1)(v).


After investigation, the legal staff, upon consultation with the appropriate committee chair, may dismiss a complaint as unfounded. The complainant and attorney are notified by letter. § 1022.19(d)(2). The legal staff may also refer the matter to a mediation or monitoring program.


The legal staff may also make a written recommendation, on notice to the attorney, that the matter be stayed and that the attorney be diverted into a monitoring program approved by the Appellate Division. § 1022.19(d)(2)(iii).


The chief attorney may issue a letter of caution when an attorney has engaged in inappropriate behavior that does not constitute professional misconduct. § 1022.19(d)(2)(iv).


Appeal by chief attorney

The chief attorney may appeal a denial of a letter of admonition. The chief attorney can seek review by the chairs of the three disciplinary committees in the Fourth Department. The letter appeal is filed within 30 days; the subject attorney has ten days to reply. § 1022.19(d)(3)(iii).


If the grievance committee declines to file formal charges, the chief attorney may appeal to the chairs of the three district committees. The letter appeal is to be filed within 30 days; the subject attorney has ten days from service to respond. § 1022.20(b).


Minor professional conduct issues

The Fourth Department’s rules allow for minor issues of professional conduct to be investigated by a local bar association in conjunction with the supervision of grievance committee staff. These issues include “. . . allegations of minor delay that resulted in no harm to the client, fee disputes, personality conflicts between attorney and client, and other minor matters.” § 1022.19(e).


In Monroe County, for example, the Professional Responsibility Committee of the Monroe County Bar Association handles such issues of minor professional misconduct.


Fee disputes

Fee arbitration matters do not constitute a disciplinary proceeding. Such issues in the Seventh Judicial District are handled by the Fee Arbitration Committee of the Monroe County Bar Association. In the Eighth Judicial District, the Bar Association of Erie County has the Attorney-Client Fee Dispute Resolution Program.


Disciplinary Responses by the Fourth Department

22 NYCRR Part 1022



∙ Letter of caution*


∙ Letter of admonition**


∙ Censure***


∙ Suspension***


∙ Disbarment***



* Not a formal disciplinary action; confidential.


** Disciplinary action, but confidential.


*** Public disciplinary action.


© 2008 by Gary Muldoon