After decades in the making—as of October 1, 2016, all New York attorneys facing disciplinary action will be subjected to the same Disciplinary Rules, regardless of the Appellate Division with the jurisdiction over their matters. For the Grievance Committees in the Second, Third, and Fourth Appellate Divisions, this means some minor changes; but, for the Departmental Disciplinary Committee, First Judicial Department. This is of great significance since the Committee in the First Department has jurisdiction over more attorneys registered in New York than any of the other Grievance Committees. Will these changes lead to greater efficiency or long lines? Will the changes lead to more uniform discipline for similar misconduct across the State? A few of the Highlights:
1. Discipline by Consent
Perhaps the most welcomed change to the Disciplinary Rules is the provision for discipline by consent—a plea bargain of the sort. For the first time in attorney discipline, respondent and staff counsel of the Committee will submit a joint motion to the Appellate Division when the parties are in agreement as to the penalty to be imposed for the alleged professional misconduct. Nonetheless, this is only available to the respondent after the Committee has petitioned the Court for formal charges against the respondent and not at the outset of the Committee’s investigation.
2. Diversion Program
Another welcomed change in the Rules is implementing a Diversion program by all four Appellate Divisions that will be available to attorneys facing disciplinary action who are suffering from mental illness, alcohol abuse, or substance abuse. This provision allows for the attorney to complete a treatment program but provides no guarantee as to what the subsequent action will be. According to the Rules, “the Court may direct the discontinuance or resumption of the investigation.”
3. Dismissal and Admonition in the First Department
Before October 1, 2016, a dismissal in the first Department required just one Committee member signature and an admonition required the signatures of two Policy Committee members. Today, however, staff counsel’s recommendation for dismissal or admonition will require the majority vote of the Committee made up of not fewer than 21 members and requiring two-thirds for a quorum to conduct business. Conceivably, this may cause a significant delay in the First Department.
All Committee members must now live or work in the jurisdiction of the Committee for which they sit. Former Committee members, the professional staff of the Committee, and former referees must wait two (2) years after the last date of their service to appear before the Committee for which they served. Plus, current Committee members, partners, associates, and family members are prohibited from defending respondents before the Committee on which they serve.
5. Mental Incapacity
Before the New Rules, not all the Appellate Divisions provided for suspension when an attorney was judicially declared incompetent or in need of involuntary care in a mental facility. Specifically, the Third Department had no such provision but did provide for suspension when the attorney was found to be “incapacitated from practicing law.” Still, there were crucial differences in the language of each of the Appellate Divisions with such a rule. In the First and Second Departments, the Courts required “proper proof of the fact.” In addition, an attorney in the Second Department who was “incapable of caring for his property” was not subject to the provision, unlike attorneys in the First and Fourth Departments.
The New Rule follows the broader, all-inclusive provisions of the Fourth Department—allowing a Committee to submit an application for the immediate suspension of a respondent who “needs involuntary care or treatment in a facility for the mentally disabled, or is the subject of an order of incapacity, retention, commitment or treatment according to the Mental Hygiene Law.” Thankfully, the rule says “may” suspend and not “shall” suspend and replaced “attorney” with “respondent”; even so, the provision seems overly broad and lends itself to abuse. An attorney becomes a respondent when a disciplinary investigation commences, whether it is a complaint filed or a sua sponte investigation.
Unifying the Disciplinary Rules is a move in the right direction—all attorneys licensed in New York should be subjected to the same Disciplinary Rules when faced with allegations of professional misconduct. Still, we must wait to see how many of these Rules will be implemented and their effect on attorneys responding to disciplinary complaints.