This article appears in the October 2019 edition of the Suffolk Lawyer, the monthly publication of the Suffolk County Bar Association.
My experience as counsel to the Tenth District Grievance Committee left me with a firm conviction that attorneys, as a rule, are dedicated to representing their clients and upholding the standards of the legal profession with integrity and skill. The Long Island legal community, in particular, is comprised of some of the highest caliber individuals, and it has been my honor to get to know many of you, both professionally and personally. It has also been my experience that the grievance process remains a mystery to attorneys and non-attorneys alike. The reactions I receive when discussing my former work at the grievance committee or my current endeavors as disciplinary defense counsel are revealing, if not consistent. Some give blank stares; some express hostility; some walk away, half-joking that they do not want to speak with me; while others take the opportunity to discuss issues, seek guidance, or express regret (or relief) over a former colleague who ran into difficulties and is no longer practicing. Others, particularly non-attorneys, are often intrigued and surprised by the mere existence of an attorney regulatory body and process.
One of the most frequent comments I hear from both attorneys and non-attorneys is something along the lines of: “Oh, you mean like when attorneys steal escrow money,” as if escrow defalcations are the only issues giving rise to grievance investigations and prosecutions. Perhaps that is to be expected, as the figurative and real damage resulting from the misappropriation of client funds or other property by an attorney (or any fiduciary for that matter) is so tangible that everyone understands and appreciates the implications. For that reason, the Appellate Divisions historically have viewed the safeguarding and preservation of client funds as one of the most important, if not the pre-eminent, means of fostering public confidence and trust in lawyers and the legal profession. And, it is for that reason that the discipline imposed by the Appellate Divisions for escrow-related infractions is often severe… and public.
However, it might surprise you that escrow-related investigations comprise only a small percentage of the overall grievance committee dockets at any given time. There are significantly more complaints and issues being investigated by the grievance committees than the public and some lawyers might perceive. As of December 2018, there were 23,131 attorneys registered to practice law on Long Island – 14,866 in Nassau County and 8,265 in Suffolk County. In a typical year, the Grievance Committee for the Tenth Judicial District receives approximately 2,500 complaints. Complaints come from all sources: clients, parties to litigation, other attorneys, and judges, or they are initiated by the committees, sua sponte, based upon information derived from local news or a notice from the Lawyer’s Fund for Client Protection or a prosecutor’s office. Not all complaints are opened for investigation. Some get declined outright; some are transferred to the bar grievance committees, mediation, or to Part 136 for fee reconciliation; and some are held in abeyance pending the outcome of related civil or criminal proceedings. Those that are opened for investigation are pursued through a conclusion. Most are disposed of privately by the committee itself; others are referred to the Appellate Division for formal disciplinary proceedings.
So, what are some of the more common issues that might cause someone to file a grievance or refer a matter for disciplinary review? And, are there certain practice areas more prone than others to allegations of misconduct? Indeed, I was just colloquially asked by someone for my opinion on what could be done about what the person perceived to be rampant misconduct by attorneys practicing in one particular area. To that end, I do not believe that attorneys, in general or in any particular practice area, purposely set out to flout the Rules of Professional Conduct[1]or some other standard of conduct promulgated by the courts. In truth, in only a small number of cases is it discovered that an attorney acted in bad faith or with venal intent. Complaints and disciplinary matters typically involve a breakdown in human relations, caused by, among other things, the pressures of practice, an inability to manage time, or, in some cases, the unreasonable expectations of a difficult client. All these things frequently lead to errors in judgment or other mistakes, regardless of the area of practice.
The Rules of Professional Conduct address underlying conduct without regard to area of law. Attorneys from every discipline are subject to the same rules (some, such as matrimonial attorneys, are subject to even more rules), and there is tremendous overlap among the kinds of allegations lodged against practitioners from each discipline. Nevertheless, it should come as no surprise that different areas of practice give rise to particular kinds of complaints: real estate clients allege conflicts of interest, misappropriation, and fraud; matrimonial clients complain of a lack of communication, failure to provide zealous representation, and overbilling; criminal defense clients express frustration with a lack of contact or allegedly inadequate representation; estate clients and their relatives make charges of self-dealing and conflicts of interest; litigation attorneys are always being accused of neglect; and judges refer matters to the committees when they believe evidence adduced at trial or contemptuous conduct warrants further inquiry, and so it goes. Regretfully, investigations initiated based on such allegations frequently evolve into other areas of inquiry as facts and circumstances come to light.
Receiving a notice from the disciplinary authorities that you are the subject of a complaint alleging professional or ethical misconduct can be extremely distressing. For some attorneys, it can be paralyzing, especially when you are unfamiliar with the process, overwhelmed by work and other stressors, or just not sure how to respond. The last thing to do, however, is to ignore the matter and hope it will resolve itself. The grievance committees and their professional staffs are dedicated to doing justice, and all complaints are taken seriously. The overwhelming majority of complaints are privately resolved following investigation and do not result in formal charges of misconduct or Appellate Division intervention. Too frequently, however, the failure to respond adequately, or respond at all, escalates an otherwise benign or limited inquiry into something more serious. If you become the subject of a grievance, do not panic or hide your head in the sand. There is a process, and although it may take some time and effort, your cooperation and candor will go a long way toward, hopefully, a favorable resolution.
Mitchell T. Borkowsky, Esq. is the former Chief Counsel to the New York State Grievance Committee for the Tenth Judicial District of the Supreme Court, Appellate Division, Second Department. His law firm provides representation to lawyers being investigated or prosecuted by the state grievance committees for alleged ethical or professional misconduct. The firm is also available to represent disbarred or suspended attorneys seeking reinstatement to the Bar, as well as to assist law school graduates in the admissions process, particularly where there may be concerns over past conduct. Mr. Borkowsky can be reached at Mitch@myethicslawyer.com
[1] [22 NYCRR 1200]
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