Introduction
The Grievance Committees in New York State serve multiple functions. They investigate allegations of attorney misconduct and prosecute disciplinary proceedings against attorneys. But the Grievance Committees also act in a quasi-judicial capacity and can discipline attorneys themselves.
Following an investigation, the Grievance Committee is presented with the conclusions of the Committee’s investigation and a recommended disposition.
The bottom line: Ethics counsel can play a crucial role in investigations involving borderline conduct, and can be the difference between a Letter of Advisement and an Admonition, or between an Admonition and a formal disciplinary proceeding.
Why: The vast majority of dispositions following a Grievance Committee investigation remain confidential, and an experienced ethics attorney understands the nuances of these dispositions.
In New York State, the Grievance Committee issue the following dispositions—or take the following actions—after it has completed its investigation:
Dismissals
Following an investigation, the Grievance Committee may dismiss the matter. [22 NYCRR § 1240.7 (d) (2) (i)]. In practice matters are dismissed if there have been no violations of the Rules of Professional Conduct or other law, and if the lawyer has not engaged in conduct “requiring comment.”
Letters of Advisement
The Grievance Committee may issue a Letter of Advisement when it “finds that the respondent has engaged in conduct requiring comment that, under the facts of the case, does not warrant imposition of discipline . . . .” [22 NYCRR § 1240.7 (d) (2) (iv)]. The Grievance Committees have wide authority to issue a Letter of Advisement, as many things can constitute “conduct requiring comment.” In practice, the circumstances in which the Grievance Committee will issue a Letter of Advisement vary from Committee to Committee and from matter to matter.
A Letter of Advisement may be issued when an Admonition was supported by the evidence, but the Grievance Committee found that the violation was minor (such as the mistitling of an attorney’s escrow account) or that mitigating circumstances supported a lesser disposition. However, a Letter of Advisement may also be issued when there has been no violation of the Rules of Professional Conduct. For example, suppose an attorney has a practice at their firm that does not violate a Rule of Professional Conduct, but is not the best practice for attorneys? The Grievance Committee may issue a Letter of Advisement advising the attorney to change the practice.
Although Letters of Advisement are not discipline under the Rules of Professional Conduct, they can be considered in aggravation by the Grievance Committee and the Court in a future investigation or proceeding. An attorney who was previously advised to correct the title of their escrow account but fails to do so may be issued an Admonition if the Grievance Committee.
Admonitions
The Grievance Committee may issue an Admonition when it “finds, by a fair preponderance of the evidence, that the respondent has engaged in professional misconduct, but that public discipline is not required to protect the public, maintain the integrity and honor of the profession, or deter the commission of similar misconduct . . . .” [22 NYCRR § 1240.7 (d) (2) (v)]. In other words, the lawyer violated one of the Rules of Professional Conduct or other law, but public discipline is not required. The vast majority of discipline imposed on attorneys in New York State are Admonitions issued by the Grievance Committee. As Admonitions are not disclosed to the public, attorneys finding themselves the subject of a Grievance Committee investigation are in a precarious position when trying to analyze issues and allegations, as the vast majority of the “case law” is not available.
While not released to the public, an Admonition can affect a lawyer’s malpractice insurance and future pursuit of public office. In addition, as with Letters of Advisement, an Admonition can be considered in aggravation if an attorney is the subject of subsequent investigation.
Disciplinary Proceedings
The Grievance Committee may authorize a formal disciplinary proceeding when it “finds that there is probable cause to believe that the respondent engaged in professional misconduct warranting the imposition of public discipline, and that such discipline is appropriate to protect the public, maintain the integrity and honor of the profession, or deter others from committing similar misconduct . . . .” [22 NYCRR § 1240.7 (d) (2) (vi)].
A disciplinary proceeding is conducted by a Special Referee, who then issues a report to the Appellate Division where recommendations are made as to the charges and a sanction. The Court is not bound by the Special Referee’s recommendations, and may disbar, suspend, or publicly censure an attorney found guilty of professional misconduct. The Court may also dismiss the charges or issue the same non-public dispositions as the Grievance Committee.
Other Actions
In addition to these dispositions, the Grievance Committees can take other actions. If the complaint “involves a fee dispute, a matter suitable for mediation, or a matter suitable for review by a bar association grievance committee . . .,” the Grievance Committee can “refer the complaint to a suitable alternative forum upon notice to the respondent and the complainant.” [22 NYCRR § 1240.7 (d) (2) (ii)]. Many of these actions are taken during the intake of new complaints, as the Chief Attorney of each Grievance Committee is granted similar authority to refer complaints to alternative forums. [22 NYCRR 1240.7 (1) (ii)]. For example, is a complaint is solely that an attorney overbilled their client, the Chief Attorney may refer the matter to the Part 137 Fee Dispute Arbitration program. However, during the course of an investigation or following the conclusion of an investigation, the Grievance Committee itself can take similar action. However, the Grievance Committee does not typically take these actions.
The Grievance Committee may also make an application for diversion pursuant to 22 NYCRR § 1240.11.
Conclusion
Navigating the outcomes of a Grievance Committee investigation can be challenging for attorneys, given the confidentiality of most dispositions and the nuanced standards applied in each case. From dismissals and Letters of Advisement to Admonitions and formal disciplinary proceedings, each potential outcome has implications that may influence an attorney’s career, reputation, and future conduct. Working with experienced ethics counsel is invaluable, particularly for attorneys facing borderline issues. A thorough understanding of these possible outcomes and the role of the Grievance Committee can better equip attorneys to manage such situations effectively, whether they are defending themselves or advising colleagues under investigation.