Credible Self-Regulation

Any credible disciplinary system requires that a complained-about attorney provide substantive and meaningful cooperation with the bar investigation.

Failure to cooperate is treated as conduct prejudicial to the administration of justice.

New York provides real teeth to the duty to cooperate, as demonstrated by a recent interim suspension ordered by the Appellate Division for the First Judicial Department.

The circumstances

Respondent’s client filed a complaint with the Committee, alleging that respondent neglected her landlord-tenant case. The client further alleged that, after she paid respondent $1,000 to work on a bankruptcy case, respondent informed her that he could not handle the case because he was not a bankruptcy lawyer. She requested a refund of the $1,000, but respondent never returned the funds.

After the Committee initially contacted respondent, respondent submitted an answer generally denying his client’s allegations. The Committee then requested respondent provide a chronology of the work he performed on behalf of the client along with any documents in support. When no response was received, the Committee made numerous attempts to contact respondent, including serving a subpoena requiring respondent’s appearance for a deposition. Respondent failed to appear, and did not contact the Committee.

The law

Pursuant to 22 NYCRR 603.4(e)(1)(i), this Court may temporarily suspend from the practice of law an attorney who is the subject of an investigation by the Committee, pending consideration of charges, upon a finding that the respondent is guilty of professional misconduct that immediately threatens the public interest. Such a finding may be made based upon the attorney’s failure “to comply with any lawful demand of this court or the Departmental Disciplinary Committee made in connection with any investigation. . . .”

Although respondent submitted an answer to the complaint, he has not cooperated with the Committee in its ongoing investigation, and failed to appear for a deposition as ordered by a judicial subpoena. In addition, he has defaulted on this motion. Such conduct demonstrates a willful noncompliance with the Committee’s investigation and warrants his immediate suspension.

I’d simply note that the District of Columbia Board on Professional Responsibility has opined that a general denial of allegations is a sufficient response. Further, D.C. Bar Counsel does not have the authority to depose an accused attorney.

Illinois gives discovery and deposition authority to its disciplinary counsel.

The Administrator, the Inquiry Board and the Hearing Board are empowered to take evidence of respondents, petitioners and any other attorneys or persons who may have knowledge of the pertinent facts concerning any matter which is the subject of an investigation or hearing.

The deposition is an invaluable tool to establish the facts both undisputed and at issue. Disagreements come into focus, charges can be brought with particularity and the entire process is streamlined as a result.

God forbid D.C. would ever grant such authority to its Bar Counsel.

Just a couple of things to add to the list of deficiencies in a system that no one seems remotely interested in correcting or improving. (Mike Frisch)