The Various Stages of A New Jersey Attorney Ethics Matter

An attorney who has been served with an ethics grievance or formal ethics complaint should be aware of the life cycle of an ethics matter. Essentially, there are various procedural plateaus in which the matter will either proceed or not, according to a variety of factors relating to the nature of the alleged ethics breach.

1. Prior to the Ethics Grievance Being Docketed
The District Ethics Committees docket grievances through a process that is usually overseen by the secretary of the committee. The respondent will not have a role in that process. However, there are situations in which the grievance does not reflect alleged actions by the respondent that if proven, would constitute an ethical violation. Such grievances should not be docketed. R. 1:20-3 (e). There is no one way to achieve this, and unfortunately, the respondent rarely will know in advance that the grievance is being docketed in the first place. However, in a situation that involves either the grievant providing advance notice to the respondent or the secretary of the District Ethics Committee reaching out to the respondent before docketing the grievance, there might be an opportunity to forestall the grievance being filed at all.

2. Grievances That are Handled by the NJ Office of the Attorney Ethics vs. Those That are Handled by the Local District Ethics Committees
One of the nuances of the attorney ethics procedure is that the grievances are usually filed with the secretary of the District Ethics Committee in the county where the respondent practices. At that point, the decision is usually made as to whether the applicable District Ethics Committee will handle the matter or if it will be referred to the Office of Attorney Ethics itself. Generally speaking, the OAE will become involved when a matter is either too complex to be handled by a volunteer investigator on the District Ethics Committee or involves potential violations of the Rules of Professional Conduct that are exceptionally egregious. One example that comes up a great deal is a grievance stemming from a random audit of an attorney’s trust account. The auditor generally is an employee of the Office of Attorney Ethics who will forward a grievance stemming from what is found in the audit to an investigator in that same office. In that example, the local District Ethics Committee would not usually be involved.

3. During the Investigation of the Grievance
It is important to open the lines of communication between the investigator and the attorney for the respondent. Not only is there an ethical obligation to cooperate with the process by giving full and complete responses to the investigator’s queries, but there is also the possibility of trying to resolve the matter through the process of a diversion, i.e. entering into an agreement in lieu of discipline. R. 1:20-3 (i)(2)(B). There is a short timeframe to do so, and there are strict requirements that must be met. The most notable of these is that the respondent must have a clean ethics record.

The diversion process is not a panacea. First, there are numerous levels of approval that have to be obtained in order for it to be approved; in other words, the fact that the District Ethics Committee investigator is amenable to a diversion is not the final word. Indeed, even if the investigator, secretary and chair of the District Ethics Committee do not object to a diversion, the Office of Attorney Ethics still has the ultimate say—indeed, there are scenarios in which the Disciplinary Review Board might overrule a provisional approval, as well. Obviously, the egregiousness of the underlying conduct that led to the grievance will be a key factor.

Even in the absence of a diversion, there is the possibility that the grievance might not proceed to the complaint stage. So as not to forestall that possibility, it is important that the respondent not engage in self-defeating behavior. Examples include,

• not taking the time to provide the investigator with a complete summary of the underlying facts and defenses;
• not being available for the interview with the investigator; and
• not providing a robust reply, if appropriate, to the responsive letter the grievant may give the investigator with regard to the respondent’s explanation for the conduct.

Undoubtedly, the most effective approach to dealing with the grievance is to acknowledge that it is effectively the new normal, so to speak. Therefore, as distasteful as it may be, responding to it must be done in a comprehensive and methodical manner.

4. Once a Complaint is Filed
By that point, the diversion process is no longer available. Id. However, there is still the possibility of discipline by consent. R. 1:20-10. This can be sought at any time during the investigation or hearing, but prior to the issuance of the hearing report. Id. at (b)1.

5. During the Hearing
To restate the obvious, the respondent’s attorney should forcefully advocate at the ultimate hearing for a finding that no discipline should be imposed.

6. Before the Disciplinary Review Board
The DRB has jurisdiction to review the hearing determination and how that determination was reached. It can then review the entire matter, and if it finds that no discipline should have been imposed, overturn what was done at the hearing (or take other action, as appropriate). R. 1:20-15.

7. Before the Supreme Court of New Jersey
Ultimately, the Supreme Court of New Jersey has the jurisdiction to review any matter relating to the ethics process.

PUBLICATIONS & PRESENTATIONS

Gary D. Nissenbaum, Esq.

• Panelist, New Jersey Trust and Business Accounting, New Jersey Institute for Continuing Legal Education, February 2021
• Presented Seminar, How to Avoid Serious Mistakes When Facing an Ethics Grievance or Random Trust Account Audit, Essex County Bar Association, December 2020
• Presented Seminar, “Good Grievance, Charlie Brown!” Latest Developments in NJ Ethics Law and Procedure, New Jersey Institute for Continuing Legal Education, July 2020
• Presented Seminar, How to Avoid Serious Mistakes When Facing an Ethics Grievance, Wilshire Grand Hotel, December 2019
• Presented Seminar, Attorney Ethics Grievances: 20 Insights from the Trenches, Wilshire Grand Hotel, December 2016
• Presented Seminar, Attorney Ethics Grievance Process, Union County Bar Association, 2011

Anthony C. Gunst, Esq.

• Presented Seminar, How to Avoid Serious Mistakes When Facing an Attorney Ethics Matter, New Jersey Association of Legal Administrators, April 2023