Fostering Efficiency in the Attorney Disciplinary Process
In his Attorney Discipline column, Hal R. Lieberman discusses proposals from the Commission on Statewide Attorney Discipline meant to foster efficiency in the disciplinary system, including greater latitude for "plea bargaining" which would remove lower level offenses from a time-consuming process, expedited procedures for attorneys who fail to cooperate in an investigation, mandatory document disclosure at an early stage, and more.
January 20, 2016 at 03:18 PM
10 minute read
My last column focused on two aspects of the New York State Commission on Statewide Attorney Discipline's recently released report recommending various reforms: uniformity (consistency) and fairness.1 This column considers additional recommendations described in the report as “fostering efficiency” in our disciplinary system. Translation: addressing perceived, undue delays.2
As discussed in my last column, on March 30, 2015, then Chief Judge Jonathan Lippman announced the formation of a Commission on Statewide Attorney Discipline, to be made up of leaders from New York's bench and bar (the author was on the commission). The stated mission was to “conduct a comprehensive review of [New York's] attorney disciplinary system to determine what is working well and what can work better, and to offer recommendations to enhance the efficiency and effectiveness of New York's attorney discipline process.” Accordingly, to study and make recommendations for reform as to the structure and functioning of the current disciplinary system, the commission established subcommittees on: (1) uniformity and fairness; (2) transparency and access; and, (3) enhancing efficiency.
Enhancing Efficiency
The Subcommittee on Enhancing Efficiency evaluated how to achieve dispositions in attorney disciplinary matters fairly and efficiently so as to provide closure to both attorneys and complainants. Because of inherent limitations in the methodology of its evaluation, the subcommittee steered clear of a definitive finding that there are in fact “unjustifiable” delays in processing disciplinary complaints, even if one takes into account legitimate “due process” concerns.3 Nonetheless, the subcommittee presented evidence demonstrating, beyond dispute, that disciplinary investigations and proceedings in New York generally take a long time, and the subcommittee reported that “[r]emedies suggested by witnesses and other proof indicate that there are several potential causes of undue delay in the disciplinary process,” which potential remedies the subcommittee listed and described.
The subcommittee also suggested, and it is apparent, that unwarranted delays hurt consumers of legal services, have negative consequences for lawyers who are the subject for bar complaints, and harm the public's perception of the bar. This is partially because most complaints are eventually dismissed, or resolved without public discipline, but in the meantime—while a complaint is pending—the complainant becomes frustrated and disillusioned and the lawyer lives with the proverbial “Sword of Damocles” hanging over the lawyer's head. Career moves can be stymied, costs are incurred, and the emotional toll can be substantial.
Proposed Remedies
The commission's proposed remedies for untoward delay (if it exists) include the following:
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