Tuesday, September 29, 2015
Lippman Commission Calls for Uniform Discipline Standards
A commission appointed by Chief Judge Jonathan Lippman recommended Friday that uniform standards for attorney discipline be adopted throughout New York state and follow guidelines developed by the American Bar Association.
While the existing machinery of disciplining attorneys should remain in place in each of the four Appellate Division departments, adopting uniform rules would ensure that lawyers from Long Island to Buffalo would be subject to the same punishments for the same misconduct, according to the recommendations of the Commission on Statewide Attorney Discipline.
The committee said the ABA's standards for imposing lawyer sanctions should serve as the template for disciplinary standards throughout the state. That single set of standards should be adopted by the administrative board of the courts and by each appellate division, the commission recommended.
Overall, the commission said the current attorney discipline system was not broken. "In many ways, it works quite well," the report said.
However, it found that the system is "antiquated, inefficient and far too opaque—a flaw which undermines public confidence."
The group proposed creating a new position of statewide coordinator of attorney discipline, who would be a liaison among the disciplinary committees in each of the four appellate divisions to ensure that disciplinary rules are being enforced uniformly, to "encourage" communication between four disciplinary panels and to recommend improvements as a more uniform statewide discipline system is adopted.
The overarching theme of the commission's report—to reduce inconsistencies on how the four departmental committees discipline lawyers—was expected when Lippman appointed the statewide panel in March. When announcing its formation, Lippman said, "if this commission were starting from scratch and creating an attorney disciplinary system in the first instance, there is no question it would establish a single, statewide structure."
Lippman noted that the appellate division-based disciplinary system has been criticized for the inconsistent application of standards and for inconsistent punishments for the same misconduct, depending on where in New York the offending attorney is practicing.
A subcommittee of the commission found a "pressing" need for "rejuvenation, coordination and uniformity in both procedure and sanction" regardless of which appellate department the attorney is registered in.
The commission said most of its recommendations could be approved by the courts administratively and "expeditiously," without the need for legislation or amendments to the state Constitution.
Other recommendations included:
• Allowing each of the four disciplinary committees to seek a court order for the interim suspension of attorneys and the publication of charges in cases where lawyers' conduct places clients at "significant risk or presents an immediate threat to the public interest."
• Establishing a diversion or alternative-to-discipline program for misconduct attributable to alcohol abuse, substance abuse or mental illness.
• Creating an "administrative" suspension and reinstatement process for attorneys who are delinquent in timely payment of their registration fees.
• Devising a better system of informing the "legal consumer" how to bring accusations against lawyers.
• Improving tracking of disciplinary matters involving alleged misconduct by prosecutors, and making the administrative board of the courts adopt rules ensuring that judge's determinations of prosecutorial misconduct are promptly referred to departmental discipline panels.
The commission was chaired by Barry Cozier, senior counsel at LeClair Ryan and a former Second Department justice. Its members included current and former judges, attorney disciplinary officials, litigators and academicians (NYLJ, March 31).
Nicholas Gravante, a member of the commission and an administrative partner and general counsel at Boies, Schiller & Flexner, said that, for him, finding a uniform system between the four judicial department was "key."
"Where things ended up was never the issue as each of the four state judicial departments have reasonable policies and procedures, and which of those policies and procedures are best could be debated endlessly," Gravante said. "Adopting one set and striving for statewide uniformity in their application was the critical objective."
Commission member Hal Lieberman, a partner at Emery Celli Brinckerhoff & Abady and author of "New York Attorney Discipline," said that he was generally pleased with the commission's final product, particularly with the recommendations to establish a statewide attorney discipline "czar" and use of ABA's rules as a guide for the statewide sanction system.
But Lieberman, a Law Journal columnist, said the commission should have done more to address the delays between the time an alleged misconduct takes place and when the matter is brought to the attention of grievance committees and resolved.
A non-member of the commission, Timothy O'Sullivan, is executive director of the Lawyers' Fund for Client Protection, the state entity that compensates clients for losses caused by crooked lawyers. He said in an interview Friday that the panel's report at initial review appears to satisfy his trustees' concerns about the unequal application of sanctions against lawyers.
"My initial impression is that the commission made some excellent recommendation about concerns that the Lawyers' Fund and my trustees had, which is that there be more consistency with the imposition of lawyer sanctions and that there be a statewide coordinator for attorney discipline," O'Sullivan said.
Robert Giuffra, a partner at Sullivan & Cromwell and a commission member, said recommendations in the report will likely bring about "real-life consequences." He noted that past committees formed by Lippman to study specific elements of New York's judicial system—such as an advisory council established in 2013 for the state's Commercial Division courts—tend to result in policy changes.
Giuffra said the commission's recommendation to keep the four judicial departments intact while working to achieve uniformity allow for both the benefits of some centralization while maintaining the benefits of keeping grievance committees local. The nature and speed of practicing law differs in each judicial department, he said, as do the clients.
"This is a very diverse legal market in a very diverse state, so there's a benefit in avoiding absolute uniformity," Giuffra said.
Stephen Gillers, a member of the commission and a New York University School of Law professor who has been critical of the disciplinary regime, said the recommendations do not adequately address the issue of bringing more transparency earlier to the disciplinary process.
In 40 states, the disciplinary process becomes open once there is probable cause to hold a hearing, Gillers said in an email, but not New York.
"So imagine a lawyer charged with serious misconduct that will almost surely lead to suspension or disbarment," Gillers said. "But it may not happen for a year or two. In the interval, a conscientious client thinking of hiring that lawyer cannot discover this fact."
The New York State Bar Association, which represents some 74,000 attorneys, said it would give its opinions about the recommendations after studying the report.
"The commission's report is very important to our association and the profession," state bar President David Miranda, partner in Heslin Rothenberg Farley & Mesiti of Albany, said. "Our Committee on Professional Discipline is studying the report."
The commission developed its recommendations after conducting public hearings in Albany, Buffalo and Manhattan (NYLJ, July 29, Aug. 12).
Lippman proposed the review of the disciplinary system in his 2015 State of the Judiciary address (NYLJ, Feb. 18). Its relatively short turnaround for producing recommendations was seen by many as a reflection of Lippman's desire to revamp attorney discipline procedures as one of his final major administrative initiatives while head of the state courts.
Lippman must step down as chief judge at the end of 2015 under the Court of Appeals' mandatory retirement rules.
Lippman initially put Chief Administrative Judge A. Gail Prudenti in charge of the review commission. When she resigned from the judiciary this summer to take a job at Hofstra University School of Law (NYLJ, July 27), Lippman elevated Cozier from vice-chair to chair of the panel and appointed Cornell University School of Law Professor W. Bradley Wendel new vice chair.
The Administrative Board of the Courts, comprised of Lippman and the presiding justices of the four appellate division departments on Thursday approved circulating the commission's report for public comment.
The Office of Court Administration said persons wishing to comment on the proposals should e-mail their submissions to firstname.lastname@example.org or write to: John McConnell, Counsel, Office of Court Administration, 25 Beaver St., 11th Floor, New York, New York 10004.
Comments must be received no later than Nov. 9, 2015, the OCA said Friday.
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Lippman Commission Calls for Uniform Discipline Standards