This is the last in a series of three columns on the subject of due process and New York’s discipline system. The first two articles focused, respectively, on (1) the historical, constitutional development of due process rights in attorney discipline cases, both nationally and in New York, and (2) particular aspects of New York’s discipline system that implicate due process.
This column will continue to address specific facets of New York’s discipline system that raise due process questions, to wit: assertion of Fifth Amendment rights; access to discovery; reasoned decisions; and, the right to be heard by the court. As in the previous columns, reference will be made to the American Bar Association’s Model Rules for Lawyer Disciplinary Enforcement (“Model Enforcement Rules”), the national guideposts for procedural standards.
Fifth Amendment Rights
Attorneys potentially subject to discipline are required by rule to cooperate with the investigating disciplinary agency. Failure to do so can result in immediate, temporary suspension for noncooperation. One important exception, however, is the Fifth Amendment right against self-incrimination. In Spevack v. Klein, the United States Supreme Court held that lawyers facing disciplinary charges, just like parties in civil litigation, are entitled to the Fifth Amendment protection that no person shall be compelled in any case to be a witness against himself and that no exception can be applied.
There are caveats, however. Notwithstanding recognition of the right to assert the privilege and remain silent – even in attorney discipline cases, where cooperation is required – lawyers who do so may be confronted with two unpleasant realities. The first is that the privilege applies only to testimony, and therefore a lawyer can be compelled to produce documents or records such as bank statements, income tax returns, and the like. The second is that, just as in civil cases, an adverse inference may be drawn from invocation of the privilege, and that inference could become the principal basis for imposition of serious discipline, including suspension or even disbarment. However – and this is a crucial aspect of Fifth Amendment law – any adverse inference must be predicated on the existence of independent, inculpatory evidence. Stated another way, no adverse inference may be drawn based merely on assertion of the privilege absent other evidence without violating the lawyer’s Fifth Amendment rights.
In the end, assertion of the privilege will entail a balancing of risks versus advantages. Imminent indictment or a likely criminal investigation will often tip the scale in favor of invocation, whereas avoidance of a potential adverse inference may be the stronger consideration in most circumstances. Accordingly, lawyers subject to discipline with potential criminal consequences, and their counsel, will be well advised to acquaint themselves with application of the Fifth Amendment right against self-incrimination in the disciplinary context.
Discovery is essentially a one way street in New York’s discipline system. An attorney under investigation can informally contact potential witnesses but is otherwise precluded from conducting any meaningful pre-hearing discovery, whereas committee staff can issue investigatory subpoenas duces tecum, demanding the production of books, records, correspondence, and documents, can subpoena the attorney or any witness to attend a deposition, and can propound the equivalent of interrogatories to which the attorney must respond (unless asserting a Fifth Amendment privilege). Moreover, the attorney is not entitled to be present at an investigative deposition of a potential staff witness, nor have access to staff notes of informal witness interviews. Crucially, the attorney is not entitled to depose a witness unless the witness’s personal appearance at a hearing is impractical.
To the columnist’s knowledge, there are no reported cases in New York that consider whether the above described, one-sided discovery practices comport with due process. Of the few reported decisions in other jurisdictions that address fairness in discovery, in two jurisdictions the courts have suggested that one-sided discovery could have due process implications, depending on the facts. In In Re Herndon, the District of Columbia Court of Appeals stated that, while parties in general are not entitled to pre-hearing discovery as a matter of constitutional right in administrative proceedings,
Nevertheless, several courts have held that an administrative agency must grant discovery to a party in a contested case regardless of whether the agency enabling statute or agency rules provide for it if refusal to grant discovery would so prejudice the party as to amount to a denial of due process. Assuming such a right could arise in some situations, it obviously would be satisfied by according discovery that was reasonable under the circumstances.
In a similar case, Matter of Tobin, the Massachusetts Supreme Judicial Court (citing Herndon, supra, and a First Circuit case, P.S.C. Resources, Inc. v. NLRB) likewise held that, an administrative agency must grant discovery to a party in a contested case regardless of whether the enabling statute or agency rules provide for it, if refusal to grant discovery would so prejudice the party as to amount to a denial of due process.
The ABA’s Model Enforcement Rule 15, which some states have adopted, clearly calls for a more balanced approach to pre-hearing discovery than is presently the practice throughout New York:
- Scope. Within [twenty] days following the filing of an answer, disciplinary counsel and respondent shall exchange the names and addresses of all persons having knowledge of relevant facts. Within [sixty] days following the filing of an answer, disciplinary counsel and the respondent may take depositions in accordance with [appropriate state rule of civil procedure], and shall comply with reasonable requests for (1) non-privileged information and evidence relevant to the charges or the respondent, and (2) other material upon good cause shown to the chair of the hearing committee [board].
- Resolution of Disputes. Disputes concerning discovery shall be determined by the chair of the hearing committee [board] before which the matter is pending. All discovery orders by the chair are interlocutory and may not be appealed prior to the entry of the final order.
- Civil Rules Not Applicable. Proceedings under these rules are not subject to the [state rules of civil procedure] regarding discovery except those relating to depositions and subpoenas.
The Commentary to Model Enforcement Rule 15 amplifies what a more liberal approach, providing for mutual discovery, would entail:
Liberal exchanges of non-privileged information should be encouraged, since they facilitate the trial of the charges. However, because a skillful advocate can convert unlimited discovery into a tool for delay, the time for discovery should be limited. An order regarding discovery should be interlocutory and should not be appealable prior to entry of a final order in the proceeding.
In our view, the New York courts, in the interests of uniformity and procedural fairness, should adopt Model Enforcement Rule 15 in each of the Departments.
Whether a lawyer found guilty of serious professional misconduct is entitled to a “reasoned decision” as a matter of fairness has never been determined in New York. For the most part, our courts rely upon, and give substantial weight to, findings of fact and conclusions of law set forth in relatively detailed Reports of Hearing Panels (in the First Department) and Special Referees. Unfortunately, these Reports, though publicly available if severe discipline is imposed, are unpublished. Of course, final determination of the Appellate Divisions are readily available online and in official reports, but in the Second Department the Court’s reasoning is obscured by the practice of issuing only formulaic decisions in disciplinary cases. Every Second Department decision simply recounts the charges, adverts to the Referee’s conclusions of law, indicates whether or not those findings should be sustained (but without explanation), and determines, without citation to precedent, the degree of discipline to be imposed.
Substantial authority exists for the proposition that more is required:
A most important function is the writing of opinions. Opinions are to serve a number of purposes at least two of which are highly significant. One is that an articulated discussion of the factors, legal, factual or both, which lead the Court to one rather than to another result, gives strength to the system, and reduces, if not eliminates, the easy temptation or tendency to ill-considered or even arbitrary action by those having the awesome power of almost final review. The second, or course, is that the very discursive statement of these articulated reasons is the thing out of which law – and particularly Judge–made law – grows. It is an essential part of the process of the creation of principles on which predictions can fairly be forecast as a basis for conduct, accountability, or the like. All Judges know that in some cases this latter factor may almost completely transcend the importance of the case which is the vehicle bringing the questions forward.
Finally, there is the issue of the right to appear before the ultimate fact finders and arbiters of discipline. As noted, in all disciplinary proceedings in New York involving the imposition of a potentially serious sanction, the courts rely heavily on Hearing Panels and/or Special Referee Reports. While these Reports are generally of a high quality, only the Third and Fourth Departments permit lawyers subject to public discipline to actually appear before them for oral argument on the merits of the charges or as to sanction.
At least one highly regarded federal jurist thinks that the right to appear and argue before the ultimate trier of fact is of constitutional significance for lawyers facing possible loss of license:
The importance of oral argument before the fact finding court to assist it in drawing inferences and evaluating probative force of the evidence cannot be underestimated. Is an essential part of the trial which may not be denied to a litigant. The Supreme Court has just reemphasized this point in declaring unconstitutional a New York practice permitting the court to deny counsel the opportunity to make a summation at the end of a criminal case tried without a jury.
Apart from the troubling implications that attend the nonuniform right to appear and orally argue only in certain geographic areas of New York, as a matter of simple fairness, and even if oral argument is not a constitutional right, we believe it ought to be provided in each of the four Departments. Oral argument is routinely available in many civil and criminal appeals; disciplinary cases involving potential loss of livelihood can be no less consequential.
The good news is that the courts, the court appointed referees who sit as fact finders, the Committees and their professional staffs – all of the constituent parts of New York’s discipline system – are dedicated, competent, and invariably attempt to be fair within the confines of the nonuniform structure in place here for so many years. The not so good news, as we have described in this three column series on due process, is that New York’s chosen procedures for adjudicating discipline contain certain deficiencies that have due process implications, and these procedural inadequacies may well affect the outcomes of cases that ultimately result in lawyers losing their livelihoods and careers.
Reprinted with permission from the August 31, 2012 edition of the New York Law Journal ©2012 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 – firstname.lastname@example.org or visit www.almreprints.com.
 Hal R. Lieberman, “New York’s Attorney Discipline System: How Much Process Is ‘Due’?,” N.Y.L.J., April 4, 2012.
 Hal R. Lieberman, “New York’s Attorney Discipline System: Does it Meet ‘Due Process’ Requirements?,” N.Y.L.J., August 31, 2012.
 See 22 NYCRR §§ 603.4(e)(1)(i); 691.4(l)(1)(i); 806.4(f)(1)(i); 1022.20(d)(3)(d).
 See, e.g., Matter of Boter, 27 A.D.3d 137 (1st Dep’t 2006) (interim suspension ordered based on attorney’s lack of cooperation); Matter of Hamerman, 211 A.D.2d 85 (2nd Dep’t 1995) (failure to respond to Grievance Committee’s demands); Matter of Ashe, 300 A.D.2d 737 (3rd Dep’t 2002) (suspension of attorney until such time as she complied with court issued subpoena duces tecum).
 385 U.S. 511, 87 S. Ct. 625 (1967).
 See, e.g., Matter of Harris, 97 A.D.3d 96, 98 (1st Dep’t 2012) (“[W]hile the inference from respondent’s invocation of his Fifth Amendment privilege may not alone permit a finding of misconduct, the bank records obtained by the Committee together with that inference sufficiently demonstrate that respondent engaged in professional misconduct by misappropriating or converting escrow funds[.]”) (citation omitted).
 22 NYCRR §§ 603.5(a), 691.5(a), 806.4(e), and 1022.19(d).
 See, e.g., 22 NYCRR § 605.17(b). Note, however, that it is generally the practice of committee staff counsel to provide access to the evidence and the names of witnesses that the staff intends to introduce in its case in chief. In the First Department, 22 NYCRR § 605.13(a) requires staff counsel and the respondent (or her attorneys) to hold a pre-hearing conference five days after the answer is served and to complete and sign a pre-hearing stipulation in conformance with the form set forth in 22 NYCRR § 605.12(d). The form calls for the parties to specify, inter alia, the undisputed facts, the parties’ contentions, documents to be offered in evidence during the hearing, and witnesses to be called.
 596 A.2d 592 (D.C.App. 1991).
 Id. at 595 (citations omitted). The Court went on to hold that the Hearing Committee had properly permitted the respondent “reasonable discovery,” under any feasible definition of that term, when it granted a portion of the respondent’s discovery request for various documents from the complainant, a former client, but denied what it deemed to be the respondent’s otherwise broad demands.
 417 Mass. 81 (1994).
 576 F.2d 380, 386 (1st Cir. 1978).
 417 Mass. at 87 (citation omitted). However, because the respondent failed to seek any discovery orders through procedures available to attorneys in Massachusetts disciplinary proceedings, the Court concluded that “[respondent] cannot now claim he was denied due process.” Id. at 87-88.
 The Model Enforcement Rules are available at http://www.americanbar.org/groups/professional_responsibility/resources/lawyer_ethics_regulation/model_rules_for_lawyer_disciplinary_enforcement.html.
 National Labor Relations Board v. Amalgamated Clothing Workers of America, AFL-CIO, Local 990, 430 F.2d 966 (5th Cir. 1970); see also ABA Model Enforcement Rule 11(6) [“Upon conclusion of the proceedings, the court shall promptly enter an appropriate order. The decision of the court shall be in writing and state the reasons for the decision.” (emphasis added)].
 22 NYCRR §§ 806.5; 1022.20(d)(2). All lawyers may, of course, make written submissions.
 Mildner v. Gulotta, 405 F.Supp. 182, 213-14 (E.D.N.Y. 1976) (citation omitted) (Weinstein, J., dissenting).
 See Model Enforcement Rule 11(6)(1) (“Within [sixty] days after the court grants review, the respondent and disciplinary counsel may file briefs and present oral arguments pursuant to the rules governing civil appeals.”); see also Matter of Ruffalo, 390 U.S. 544 (1968) (disbarment proceedings “are adversary proceedings of a quasi-criminal nature”). The Second Circuit has expanded upon Ruffalo, explaining that “a court’s disciplinary proceeding against a member of its bar is comparable to a criminal rather than to a civil proceeding.” United States v. Private Sanitation Indus. Assoc. of Nassau/Suffolk, Inc., 44 F.3d 1082, 1086 (2d Cir. 1995), quoting Erdmann v. Stevens, 458 F.2d 1205, 1209 (2d Cir. 1973). The New York State Court of Appeals has acknowledged the quasi-criminal nature of disciplinary proceedings. Matter of Kelly, 23 N.Y.2d 368, 384, 296 N.Y.S.2d 937, 951 (1968).
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