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As the legal community welcomes 2020, the total number of licensed attorneys in New Jersey is expected to eclipse 100,000. All attorneys have taken an oath to strictly adhere to New Jersey's Rules of Professional Conduct. Invariably, some attorneys will find themselves the subject of an ethics grievance, formal complaint, or final discipline. Regardless of whether the allegation of ethical misconduct arises from a spurious accusation arising from improper motives, or involves serious misconduct, the process must not be underestimated as in all cases an attorney's license to practice law is at risk.

In New Jersey, the Supreme Court is vested with exclusive authority over the attorney disciplinary process and imposition of discipline. N.J. Const. art. VI, § 2, ¶ 3. By designation, District Ethics Committees staffed by local volunteer attorneys appointed by the Supreme Court are charged with investigating most allegations of attorney misconduct. N.J. Court Rule 1:20-3(e). The purpose of the attorney disciplinary system is to maintain public confidence in the legal profession and to protect the public from lawyers who run afoul of the Rules of Professional Conduct. An ethics grievance may be filed by anyone and is not restricted to former or current clients. Grievants may be an adversary, colleague, or member of courtroom staff, to list a few. Moreover, a disciplinary investigation is not limited in scope to the allegations raised by the grievant. That is to say, even if the grievance contains allegations proven to be meritless, an attorney may still face discipline as a result of facts uncovered during the investigation that form the basis of ethical misconduct. Attorneys are permitted, and are encouraged, to obtain counsel specializing in ethics matters to assist with defense of a grievance.

When a grievance is submitted to the appropriate authorities, it may either be docketed by the District Ethics Committee, declined, or deferred. Grievances are only declined if the allegations, if proven, would not constitute unethical conduct. Once docketed, a grievance is assigned to an investigator, and the respondent will be required to provide a written response to the allegations. Although respondents are asked to respond within 10 days, most investigators will provide extensions as a matter of professional courtesy. Interviews of the grievant, respondent, and any essential witnesses typically follow the parties' written submissions. A grievance may be deferred for a number of reasons, the most common of which is the existence of related pending litigation. N.J. Court Rule 1:20-3(f). As a general matter, a grievance deferred or administratively dismissed pursuant to Rule 1:20-3(f) must await the outcome of the related litigation before it is investigated.

No Plea Bargaining in Disciplinary Matters

Plea bargaining is not permitted in disciplinary matters. Nor may attorneys condition the resolution of a dispute with a client on an agreement not to file an ethics grievance. As a matter of public policy, the Advisory Committee on Professional Ethics has ruled that "an attorney may not seek or agree, as a condition of settlement of an underlying dispute, that the client not file an ethics grievance with regard to conduct of the attorney in the matter or withdraw a grievance already filed." ACPE Opinion 721 (June 22, 2011). "Attorney discipline is not a private cause of action or private remedy for misconduct that can be negotiated between an attorney and the aggrieved party." Id. Such agreements violate RPC 8.4(d) as prejudicial to the administration of justice. Violations may result in discipline ranging from public admonition to censure. See e.g., In the Matter of Jeffrey R. Pocaro, 214 N.J. 46 (2013)(attorney censured for attempting to negotiate the withdrawal of a grievance in exchange for the attorney's promise not to file a defamation suit against his former client); In the Matter of Eryk A. Gazdzinski, DRB 14-104 (Oct. 1, 2014)(attorney reprimanded for entering into an agreement to provide a voluntary fee refund in exchange for the withdrawal of the grievance).

Nor can a grievant voluntarily withdraw a grievance once it is docketed. The investigation must be pursued and completed, even if the grievant does not cooperate. Attorneys, however, have a continuing duty to cooperate at all levels of a disciplinary investigation and subsequent proceedings. N.J. Court Rule 1:20-3(g)(3) and RPC 8.1(b). This means the respondent must timely respond to an investigator's requests, whether it be the provision of an initial response to the grievance, for example, or the furnishing of requested documents. See e.g., In the Matter of Richard D. Koppenaal, DRB 13-164 (Oct. 21, 2013)(attorney failed to cooperate with ethics investigator's attempts to obtain information about the attorney's representation of a client); In the Matter of Lora M. Privetera, DRB 11-414 (Feb. 21, 2012)(attorney submitted an inadequate reply to an ethics grievance; thereafter, she failed to cooperate in the ethics investigation until finally retaining counsel to assist her).

At the conclusion of every investigation, the assigned investigator is required to prepare a detailed report with a recommendation as to the disposition of the grievance. If the investigator concludes that unethical conduct cannot be proven by clear and convincing evidence, a recommendation of dismissal is issued subject to the approval of the Committee Chair. If unethical conduct can be proven, most commonly a formal complaint is filed (which then becomes public). Diversions, or agreements in lieu of discipline, are available for minor unethical conduct in some circumstances. While the clear and convincing standard of proof is a high burden, attorneys should not treat allegations of misconduct lightly, even if they are entirely baseless or without merit. When faced with a grievance or formal complaint, attorneys should be well-prepared to mount the strongest possible defense.

Tips to Follow When Facing Grievances with an Ethics Committee

Against this backdrop, there are some tips that are helpful to any attorney that faces a grievance docketed with a District Ethics Committee. As an initial matter, approach allegations of misconduct in a measured and methodical manner. Remember, the filing of a grievance does not mean that an attorney did anything wrong. Adopting a measured and methodical approach helps to prevent the temptation of knee-jerk reactions that may put an attorney's license and reputation in jeopardy. An all-too-common reaction includes submitting a hastily-prepared response to a grievance without including appropriate documentary evidence.

It is advisable to hire counsel with experience in ethics matters to provide guidance and to assist in preparing the strongest possible response. While the expense of retaining counsel may initially seem cost-prohibitive, many professional liability insurance policies provide separate coverage for the defense of ethics matters. Upon receipt of a grievance, an attorney should investigate the available coverage and report it as a claim.

Do not contact the grievant to "work it out." As stated above, once a grievance is filed it cannot be withdrawn, and any attempt to "settle" the grievance outside of the disciplinary process may be an independent basis for discipline.

Every response to the grievance, whether prepared by counsel or otherwise, must be truthful and as detailed as possible. If an attorney is perceived to be uncooperative, it can only lead to further trouble. The response to the grievance should generally include a complete factual history of the relationship with the grievant and the representation at issue to provide the investigator with as much context as possible. This will necessarily reduce the likelihood of a prolonged investigation involving additional requests for information to substantiate the lawyer's defense. Do not hesitate to produce e-mails, text messages, phone records, or other file materials that may be probative of the attorney's defense. Investigators often request production of the entire file, or an opportunity to inspect the file. As such, a well-maintained file will assist the process. By way of example, it is common for investigators to request production of client engagement letters to verify the scope of a lawyer's representation. The failure to have a proper engagement letter may lead to discipline separate and distinct from the allegations of the grievance. See RPC 1.5(b); In the Matter of David W. Boyer, DRB 07- 032 (Mar. 28, 2007) (attorney failed to provide the client with a writing setting forth the basis or rate of his fee, in violation of RPC 1.5(b)).

Always treat the process and all those involved with courtesy and respect. When corresponding with disciplinary authorities, it does not help to use inflammatory language or to employ literary devices that belittle the process or the grievant. Attorney discipline is not a joking matter, and all communications are reflective of an attorney's professionalism. Also, an attorney's conduct during the disciplinary process itself may be the grounds for the imposition of discipline. See e.g., RPC 3.2 (failure to treat all persons involved in the legal process with courtesy and consideration); RPC 8.1(b) (failure to cooperate with disciplinary authorities); RPC 8.4(c)(conduct involving dishonesty, fraud, deceit or misrepresentation); RPC 8.4(d)(conduct prejudicial to the administration of justice).

Conclusion

In its entirety, the attorney disciplinary system functions as a means to protect the public and to ensure the responsible practice of law. Attorneys should be familiar with the process before being confronted with allegations of misconduct so they are well-equipped to respond appropriately should the need arise. Diana C. Manning is a principal and co-chair of the Business and Commercial Litigation Practice at Bressler, Amery & Ross. She has over two decades experience in complex litigation, including professional liability claims.