NEW YORK COUNTY LAWYERS ASSOCIATION TESTIMONY OUTLINE OF CAROL A. SIGMOND AT THE AUGUST 11, 2015 HEARING OF THE COMMISSION ON STATEWIDE ATTORNEY DISCIPLINE ON REVIEW OF THE STATE S ATTORNEY DISCIPLINARY SYSTEM Dear Members of the Commission: My name is Carol Sigmond and I am President of the New York County Lawyers Association (NYCLA) and I am here today to address the Commission on behalf of NYCLA. Here with me today is Richard Maltz of Frankfurt, Kurnit, Klein & Selz, and Co-chair of the NYCLA Professional Ethics Committee. Thank you for granting NYCLA the privilege of addressing the commission on this most important issue concerning proposed unification of the New York State Disciplinary System. As we understand the situation, the Commission is charged with, among other things, addressing five (5) questions: (i) does New York s department based system lead to regional disparities in the implementation of discipline; (ii) is a statewide system desirable; (iii) how disciplinary committees can achieve dispositions more quickly; (iv) public disclosure of the process; and (v) should discovery be available to respondent attorneys. I will address these subjects one at a time, with some perspective, on related issues that we believe are equally important. 14 Vesey Street, New York, NY 10007 Tel. 212-267-6646 Fax: 212-406-9252 www.nycla.org
(i) Department-based System This subject must be divided into two distinct parts, a) procedural uniformity and b) decisional uniformity. But a moment of background: The department based system was part of the compromise that led to the Unified Court System. Among the arguments for the departments retaining independence was the differences in the departments as to size and other issues. There are approximately 169,000 lawyers in the State of New York. About half of those attorneys practice in the First Department. The Second Department has approximately one quarter of those lawyers. The remaining attorneys practice in the Third and Fourth Departments. Geographically, the departments are also different, with First Department being the smallest geographically and the Third and Fourth Departments being the largest. These differences in population and geography create, by definition variances in practice and procedure. Unfounded charges of fraud against prevailing lawyers by losing parties in the First and Second Departments are a fact of life. These issues are really not part of the culture in some other departments. NYCLA operates a Fee Dispute Arbitration Program under part 137 of the Rules of the Chief Administrative Judge. 2
Similarly, the First and Second Departments receive many cases that are really bona fide fee disputes in the guise of discipline complaints. Such tactics are not employed as often in some departments. These regional differences are real and must be accepted as part of the process in any move to unification. (a) Procedural Uniformity Currently, each department regulates the practice of law within its department. Each department has adopted its own rules of procedure governing disciplinary investigations by grievance committees. This differs from other states which have a centralized process that is the same state or commonwealth wide. NYCLA has studied the differences in New York state. On November 12, 2005, NYCLA s Committee on Professional Discipline prepared a detailed report on the procedural differences in process among the four departments. The report is available either from NYCLA or on our website, www.nycla.org. I will mention two differences, hearing process and committee sanctions. In the First Department, hearings are held before a referee. The First Department system is also bifurcated as to liability and sanction. Only after liability does the referee reach the sanction. Both sides make recommendations on the sanction. After the referee makes a recommendation it goes to the panel which reviews the report and record, takes oral argument. The panel prepares its own report and recommendation to the appellate division. 3
In the other departments, there is no bifurcation and there are no recommendations made to the appellate division. As to sanctions, the referee report is submitted directly to the Appellate Division which makes a decision on the record. The Third Department has letters of caution and education. The First Department has neither letter, and the Second Department has only the letter of caution. Some consistency in this area for minor transgressions would be highly desirable.. Overall, on balance, procedural uniformity among the Departments would be a positive development. (b) Decisional Uniformity Professor Gillers and others have criticized New York s disciplinary system because of alleged inconsistencies between the departments as to the sanctions imposed for similar conduct. In our view, this is not a valid criticism and we reject Professor Gillers position in this regard. To begin with, disciplinary decisions are strongly fact-driven, more so than in other areas of the law. The context of the lawyer s behavior and any aggravating or mitigating circumstances must be taken into account when considering the appropriate sanction, including whether a lawyer must be further 4
deterred. The Appellate Divisions focus on protecting the public while being fair to respondent-attorneys, whose entire livelihood turns on the court s decision. This requires decisions that reflect the unique facts of each case and carefully balance all mitigating and aggravating factors instead of blindly applying blanket rules or mandatory sanctions that may be unfair to the respondent-attorney and be unsuitable for the particular offense. Overly harsh sanctions reflect just as negatively on the judicial system as overly lenient ones. The ABA Standards discuss this issue: sanctions which are too lenient fail to adequately deter misconduct... [However] sanctions which are too onerous may impair the confidence in the system and deter lawyers from reporting ethical violations on the part of other lawyers. Notwithstanding the fact-driven analysis, Appellate Division decisions have generated opinions and precedent that can be applied to similar cases as appropriate disbarment for intentional conversion is just one example. Admittedly, there may be differences in sanctions between departments, as well as differences in the courts willingness to apply precedent, and there may even be inconsistency within individual departments on these points. No amount of rule-making or legislation can eliminate this problem. Although I have not 5
surveyed other areas of the law in detail, I do know that similar inconsistencies exist between the departments in other areas of law, inconsistencies the Court of Appeals is sometimes called upon to resolve. Moreover, in any area of the law, cases with unique facts will usually result in unique outcomes. This is an inevitable outcome in New York s department-based legal system. Having said that, more consistency might occur if only one court, such as the Court of Appeals, decided every case. However, this would still require a fact driven analysis that will inherently create apparent inconsistencies. It would also dramatically increase the Court s workload with little concomitant benefit. I will discuss one uniform system under the Court of Appeals in a moment that will bear on this issue. In short, procedural uniformity would be beneficial but decisional consistency is, in some respects, unobtainable in our system and more perception than reality in any event. It does not warrant action by this Commission. Moreover, we oppose any approach that would resemble the mandatory criminal sentencing guidelines recently abandoned by the federal courts; a nuanced, caseby-case approach, guided by court precedent, in our view will lead to more just results. 6
(ii) Statewide System Presumably, if a statewide system is implemented it would entail having the Court of Appeals regulating the disciplinary process throughout the state. Theoretically, it would operate under one statewide Chief Counsel under the auspices of the Court. Presumably, Deputy Chief Counsels within each department would manage their jurisdictions just as the Chief Counsels in the Second Department do now, from Brooklyn, Hauppauge and White Plains but with the some oversight by the statewide Chief Counsel. A state-wide system would have some beneficial attributes. It would permit independence for Disciplinary Chief Counsels from any perceived local pressures and politics. This would remove any perception that the Appellate Divisions, which are the courts of first impression for disciplinary cases, are mixing their roles by simultaneously prosecuting cases and deciding them. It could eliminate hiring disparities, while bringing more consistency to the process and the sanctions imposed. On the other hand, a state-wide process would remove the local perspective brought by the individual courts sitting in the local department. It would also create additional bureaucracy that could slow, not speed, the process. On balance, we suggest that a statewide system is not necessary. 7
Yet, coordination and communication between the disciplinary committees of the four departments could facilitate more consistency throughout the state, particularly if uniform procedures are adopted. A less formal coordination should include the Chief Counsels offices and the Committees. This can be accomplished by an agreement by the Administrative Board to encourage, facilitate or mandate that representatives of the committees and counsels offices from all four departments regularly meet, communicate and share ideas with one another with the goal of bringing more consistency to the process just as the Administrative Board itself does with respect to the court system. (iii) Delay Unquestionably, an issue that has plagued all disciplinary committees for many years is the delay in disciplinary investigations and proceedings. There can be no dispute that delay in the disciplinary system is undesirable. It is unfair both to complainants, who have the right to have their complaints heard and resolved expeditiously, and to attorney-respondents, who want final action so they can put this distressing matter behind them. This is not a new subject and, in the past, it has been raised without any realistic assessments or solutions. I will provide some reasons for this problem and two suggestions which may help to alleviate some delay. I will also briefly discuss 8
a perceived problem that has been overstated the alleged danger to the public from supposed delays in escrow cases. (a) Resources One cause of delay rarely raised by critics of the current system is that Chief Counsel s offices have inadequate resources. Solving this problem of course requires money, so that there are sufficient staff attorneys and support personnel to handle the existing caseloads. But quantity alone is not the answer: offices should concentrate on hiring disciplinary prosecutors who have real world experience (something that does not always happen now), and on paying wages comparable to local district attorneys offices to attract those lawyers. More paralegals and investigators who are capable of substantive investigations would also have some impact. Disciplinary prosecutors, investigators and other staff could be made more effective with statewide training. Devoting resources to better training will also help cases move faster. Another alternative that has been suggested is having a lawyer hired to act as counsel to the committee in each department, someone who is not also on the investigation and prosecution staff. This will allow disciplinary prosecutors to focus on prosecuting cases, rather than handling responsibilities as counsel to the 9
Committee. This will also assist the Committee in moving matters forward more quickly because it will have a dedicated law secretary to assist with decisions and administrative tasks. (b) Plea Bargaining Few members of the public realize that disciplinary cases cannot be resolved informally once formal charges are filed. This is because each case of public discipline is considered a formal decision of the appellate court, and thus must be based upon a full record and fit within existing precedents. This is incredibly inefficient: a lawyer facing formal charges in the First Department faces a threestage process that must be followed to completion, even if both sides can agree on a quick and appropriate resolution. The use of plea-bargaining, similar to criminal practice, would solve this problem. As noted previously, Committees already have authority to dispose of cases before formal charges through Letters of Caution, Admonitions and the like. Accordingly, plea bargaining would be most useful for cases subject to formal charges. The hearing process includes many steps and involves a large amount of man-hours for staff. Plea bargaining would greatly assist in efficiently completing these cases and eliminating unnecessary motion practice and discovery, thus freeing staff to address other, unresolved cases more quickly. Public discipline 10
would have to be approved by the Appellate Divisions, but this is already done in resignation cases; such approvals could make clear that they have no precedential value. The lack of resources and unavailability of plea-bargaining are not the only reasons cases move slowly. The use of Hearing Panels in some Departments, for example, can cause delay simply because of the difficulty of coordinating hearing dates among the various participants. But addressing those two central issues, combined with energetic leadership and a state-wide commitment to prioritize the disciplinary process, will go a long way to changing a culture that often moves too slowly, to the detriment of the public and the attorney-respondents. (c) Danger to the Public One public outcry over the years is that the public is endangered when a lawyer has been accused of converting escrow funds or issuing a bounced check and the committees take a long time to resolve the allegations. In short, there is a perception that escrow investigations take too long and the public is endangered because the attorney-respondents continue to convert escrow funds. However, the strong anecdotal evidence shows that when a lawyer is notified of a Committee investigation for an escrow violation the lawyer generally does not engage in further thefts. Of course, there are exceptions to the 11
rule but this does not appear to be a pervasive problem. Moreover, if a lawyer truly appears to present a risk of ongoing danger to the public, and there is incontrovertible evidence of conversion, an interim suspension is easily requested (and generally granted). The point is that a lawyer s right to defend an escrow allegation that could end the lawyer s livelihood, result in the loss of a license and destroy a reputation, admittedly takes time. The Commission should not allow a misconception to result in a recommendation of a draconian approach that is not justified by the facts. (iv) Opening of the Process (a) Disclosure of Past Discipline-Central Data Base Years ago it was difficult for the public to investigate a lawyer s public disciplinary record. With the advent of the Internet, this is no longer a problem. Now, a censured, suspended or disbarred lawyer s name is readily available. Thus, from a consumer protection perspective, it is very easy to put a lawyer s name into a search engine and come up with public discipline. Having said that, a Central Data Base would be worthwhile to develop and maintain. While some may contend that such a Data Base turns a lawyer s single mistake into an indelible scar, this is a by-product of public discipline in the Internet age. Absent a court 12
order or rule, we cannot simply wipe the slate clean, or hide the sanction, in order to protect a lawyer s reputation. The one stage of a proceeding in which the public is in the dark is when a lawyer has been subjected to formal charges, has not been suspended in the interim, and is going through the lengthy hearing process. This directs us to the next option. (b) Open the Process at Charging Stage This is complicated, but in broad strokes, some states open the disciplinary process from the filing of the initial complaint (i.e., the very first complaint letter or form filed by the complaint) and others at the stage when Formal Charges are filed. New York, however, does not make the existence of disciplinary proceedings public unless and until the Appellate Division has issued a final order. Judiciary Law 90(10). NYCLA does not support opening the process until the Appellate Division has ordered public discipline. It is premature to ruin an attorney s reputation until he is found guilty and the Appellate Division has confirmed the attorney s guilt and level of discipline. This is especially important because the Appellate Division currently can order a private reprimand after an attorney has been charged or dismiss some or all the charges after a hearing. In those circumstances, publicizing the disciplinary charges would undermine a respondent s right not to have conduct 13
public that the Appellate Division ultimately determined was not misconduct or not worthy of public dissemination. Nonetheless, a reasonable argument can be put forth for opening the process once charges are filed, as some states do. This assumes an appropriate review is conducted at the Committee level or by the Court and approval is given for the filing of Charges. Because the review process differs between departments, a careful analysis of those different processes would need to be done before considering whether to open the disciplinary process at the charging stage. (v) Discovery For Respondent On July 23, 2015, the NYCLA Executive Committee authorized a letter be sent to the New York State Bar Association Executive Committee endorsing the recommendations for access to discovery by respondent attorneys made by the New York State Bar Association s Committee on Professional Discipline in its Report and Recommendations Concerning Discovery in Disciplinary Proceedings, dated June 26, 2015. NYCLA supports discovery for respondents in attorney discipline proceedings. 14