[A version of the post has been published as a letter-to-the-editor in the Feb. 2015 edition of the Erie County Bar Association’s BULLETIN, at http://www.eriebar.org/files/Bulletin_February_2015.forweb.pdf.]
– The refusal by the disciplinary officials to provide a copy of the accused attorneys’ response is unfair and reflects a system where certain lawyers are granted deferential treatment. –
The legal profession is described as “noble” and “largely self-governing” in the Preamble to the New York Rules of Professional Conduct – the standards of conduct that provide a framework for the ethical practice of law. According to the Preamble, adherence to the Rules depends upon voluntary compliance by lawyers, reinforcement by peer and public opinion, and, when necessary, enforcement through disciplinary proceedings. Additionally, unless every lawyer observes the Rules and “aid(s) in securing their observance by other lawyers,” the law will not continue to be a noble profession, and the public’s confidence in the rule of law and the justice system will not be furthered.
Until my recent efforts to comply with a lawyer’s ethical obligation under the Rules – to report to the local Attorney Grievance Committee conduct that raises substantial questions as to a lawyer’s honesty and trustworthiness – I wanted to believe that my chosen career was called “a noble profession” because society considered it a distinguished and admirable calling. I am now left wondering whether the term “noble” describes a profession that perpetuates a two-class system where an aristocracy enjoys privileges not available to the commoners.
Confidentiality requirements prevent me from discussing the facts that motivated me – for the first time in my 38-year career – to file a complaint against an opposing counsel. [See NYS Judiciary Law, Section 90(10).] What I can say is that the conduct of my opposing counsel was unlike anything I had ever seen in a legal proceeding, behavior that – in my professional opinion – sunk so low as to easily meet the tough standard expressed in Rule 8.3(a) of the Rules of Professional Conduct [RPC]:
RULE 8.3. REPORTING PROFESSIONAL MISCONDUCT. (A) A lawyer who possesses knowledge or evidence that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation. [Emphasis added.]
But the focus of this post is not the behavior that compelled me to report potential violations of the Rules of Professional Conduct to the local Attorney Grievance Committee [AGC]. What most concerns me is the process utilized by the AGC – or, at least, its staff and chief counsel – to investigate and dismiss my complaint. I do not know whether the grievance process – at least as it is administered where I practice – is heavily weighed against the complainant lawyer and in favor of the respondent lawyer, or if I am, in effect, a victim of a system where “the nobility” are treated with deference, and the commoners’ concerns are ignored.
Note: I consider myself one of the “commoners” – a sole practitioner and former legal services attorney who is not a member of a prestigious law firm, and who has never run for (much less held) statewide or federal office, or served as an officer or director of a state or local bar association. I lack the means to donate substantial sums of money to either charitable causes or political/judicial campaigns. I also have focused my practice on the representation of average citizens – the perennial underdogs – who possess the courage and foresight to challenge the actions of the financial and political elite.
* The process as described by the Attorney Grievance Committee *
The brochure distributed by the Attorney Grievance Committee, as well as the AGC’s “how-to-file-a-complaint” guidelines available on-line, provide the following description of the complaint process:
… If review of your complaint by a staff member indicates that unethical conduct may be involved, the usual procedure is to send a copy of your complaint to the lawyer for his or her response. You will receive a copy of the lawyer’s response to your complaint. [Emphasis added.]
It was reassuring to me, as a potential complainant deciding whether to accuse another lawyer of having violated the Rules of Professional Conduct, to read the following statement:
… The committee will act to resolve your complaint in a manner that is fair to both you and the attorney(s) named in the complaint. [Emphasis added.]
* The process that I encountered *
Aware of the serious nature of the decision to report a claim of attorney misconduct, I drafted a detailed five-page complaint against opposing counsel – two lawyers affiliated with the same law firm. I also attached eleven supporting documents to the complaint letter, and mailed the papers to the AGC’s local office. Then I waited, expecting, not a quick determination, but the courtesy of a simple acknowledgement that my complaint had been received and would be reviewed. When several weeks crawled by without a word, I called the local AGC office and obtained confirmation over the phone that my packet had been received. Shortly thereafter, the grievance committee’s letter of acknowledgment arrived in the mail, signed by a staff investigator.
That correspondence contained the first troubling sign. To my dismay, contrary to the description of the complaint process found at the AGC’s web site and in its brochure, the first official correspondence from the Attorney Grievance Committee advised me that I would not receive a copy of respondents’ reply to my complaint. Without explanation, the disciplinary office had decided that the two lawyers that I consider the most truth-challenged and the least trustworthy of any attorney with whom I have interacted in nearly four decades of practicing law, would not have to worry about me seeing their responses to my complaint. In effect, they were given a license to say anything they wished – free from any concern that the complainant would be scrutinizing their assertions. This did NOT strike me as a process “fair to both” the complainant and respondents.
I promptly sent a letter to the AGC investigator and politely asked for clarification of two issues, including the apparent conflict between the process described in the brochure and the statement included in the AGC’s correspondence. The written reply that arrived the following week addressed the second point, but made no reference to my primary concern, the fact that I would not be receiving a copy of the response(s) to my complaint. Two weeks later, a letter arrived in my mailbox. The opening paragraph advised me that further investigation with reference to the respondents was unwarranted at this time. The concluding paragraph told me that the file would be closed. The intervening paragraphs raised a number of vexatious issues, including the following:
* The two attorneys who were the subject of my complaint did not personally respond to my allegations. Another attorney in the same firm – a lawyer who had also participated in the litigation in which the alleged misconduct had taken place, and who had demonstrated personal animus towards me throughout the lawsuit – submitted a response on their behalf denying my claims. I was not told whether the grievance office had received a detailed response to the allegations in my lengthy complaint, or merely a general denial. Given the significance of a lawyer’s motivations, mind-set, and intentions at the time an alleged violation of the Rules of Professional Conduct occurs, a response by a non-respondent appeared to me to be wholly inadequate and inappropriate.
* I was not provided an opportunity to respond to the conclusion that the issues raised in my complaint had been raised before the IAS court in oral argument, and that the court had apparently ruled on my claims. In fact, while my allegations did stem from the circumstances relevant to a motion made by the two attorneys named in my complaint, the question of whether the “respondents” had violated their professional responsibilities had not been raised, and the Court never addressed or ruled on the factual and ethical issues raised subsequently in my grievance complaint.
* The Investigator’s assessment concluded with a statement (more appropriately uttered by an adversary than a grievance committee staff member) that while I may be dissatisfied with the lower court’s ruling, the Attorney Grievance Committee is not an alternate venue for appellate review of judicial decisions. By expressing this sentiment, the grievance committee’s investigator chose to disregard – or had not been advised by respondents’ associate – that an appeal had in fact been taken from the court’s ruling, and that the appeal to the Appellate Division (on behalf of my clients) and the grievance complaint (filed solely by me as an officer of the court pursuant to RPC Rule 8.3[a]) involve discrete issues.
* The absence of a mechanism to appeal or request reconsideration of the dismissal *
To my surprise, three of New York’s four Appellate Divisions – including the pertinent one here – do NOT provide a means for a complainant to challenge or request reconsideration of the dismissal of his or her complaint. That being the case, I sent a letter to the AGC’s Chief Counsel, requesting that the file containing my complaint be reopened, that I be allowed the opportunity to review and reply to the response submitted on behalf of the respondents, and that the grievance committee then reconsider its determination.
The Chief Counsel declined my request to reopen the matter. Moreover, the conclusory assurances that were provided to me, that the entire file had been given thorough attention, and that the decision to dismiss the complaint was sound, failed to allay my concerns. In particular, the Chief Counsel made no effort to explain why – contrary to the grievance committee’s own procedures – I had been denied access to the response submitted on behalf of the two attorneys named in my complaint. Instead, I was told that I appeared to be well aware of the respondents’ position since my complaint anticipated several challenges raised in the response.
Of equal importance, the Chief Counsel – presented by me with documentary evidence that the court had not ruled on the issues raised in my grievance committee complaint – stated the court’s rejection or denial of my concerns was “implicit” in the court’s rulings. Apparently, at least in the mind of one chief counsel, an implicit (that is, unstated) ruling by a lower court is good enough reason for an Attorney Grievance Committee (or, at least, its staff) to disregard the well-documented concerns of a complainant.
* The nobility of our profession, and confidence in the justice system, are imperiled *
As a result of the language used in the official correspondence sent to me by the grievance committee investigator and chief counsel, I do not know whether the volunteer group of lawyers and non-lawyers comprising the attorney grievance committee – established “to maintain the standards of the legal profession” and “to protect the public” – had any role in the dismissal of my complaint. It could be that my complaint was only seen by the AGC staff and counsel. Regardless, it is difficult to reconcile the process that I experienced with the assurance in the Attorney Grievance Committee brochure that my complaint would be resolved “in a manner that is fair to both you and the attorney(s) named in the complaint.” I also have no way of knowing whether other New York lawyers – who, like myself, may lack political connections, are not affiliated with a prestigious firm, lack the wherewithal to contribute generously to cultural institutions or political campaigns, or who have taken on unpopular causes on behalf of “the underdogs” – have filed grievance complaints against an attorney, and then experienced what I have: a denial of access to that attorney’s response, and receipt of a condescending, if not insulting, admonishment that the Attorney Grievance Committee is not an alternate venue for appellate review of judicial decisions.
The bottom line: I feel as if I have been treated as a “second class” member of the legal profession by my local Attorney Grievance Committee, or, at least, by its staff and chief counsel.
It is unclear to me what would be worse for the legal profession and the rule of law: a system where “the nobility” are treated with deference, and the concerns of “commoners” and the procedures meant to ensure fairness are disregarded; or, a grievance process where all complaints filed by one lawyer reporting misconduct of another lawyer are treated in the same fashion as mine. Either way, compliance with RPC Rule 8.3(a)’s mandate to report serious violations of the Rules of Professional Conduct to the appropriate authorities is being discouraged. Either way, the characteristics that – at least theoretically – make the legal profession a distinguished and admirable calling are imperiled, and the public’s trust in the justice system is diminished.
With All Due Respect,
Arthur J. Giacalone (NYS Attorney Registration # 1335082)
With All Due Respect 