Respond Don’t React: What to do When You Receive an Ethics Grievance or Complaint

Five Practical and Immediate Steps to Defend Against an Ethics Grievance or Complaint

What is sometimes lost in the discussions of the complexities of defending against an attorney ethics investigation or enforcement is the very human aspect of what it feels like to be the target of a grievance or complaint. Everything about the legal profession resides on one level or another in compliance with prevailing law, regulations and court rules. Simply put, being the target of an allegation—even a groundless one—that an attorney violated the Rules of Professional Conduct can be highly unnerving.

So what exactly should you do at the outset?

The following are five suggestions that can be implemented immediately.

1. Do not speak to potential witnesses.

Your first reaction might understandably be to correct what you believe are the actual, or perceived, errors in the grievance or complaint. The obvious way to do so would be to go over those facts with the people who were involved. That is usually a mistake.

You are rarely cloaked in confidentially; whatever you say may be testified to at a later time, either voluntarily or by compulsion. Therefore, there is no upside to unburdening yourself about your fears and doubts about the road ahead, since those statements may well be ultimately quoted on the record.

Each of these individuals are potential fact witnesses who will likely be debriefed in the investigation or have to testify at any resulting hearing. Therefore, you must ask yourself if you are really prepared to speak with them. After all, you may not have reviewed the underlying case law, advisory opinions and relevant Rules of Professional Conduct; you have not consulted counsel; and, to say the least, are not (yet) cool, calm and collected. Resist the impulse.

2. Recognize that you are now confronted with a “new normal.”

Apropos of the previous point, nothing about this situation should be informal. There is no advantage in trying to make it all go away by simply explaining what happened without the feedback and filtering of counsel.

You must face the fact that you have entered a new normal. The situation can be resolved quickly or take on a life of its own; you don’t know which it will be. You must proceed with caution, and that means being thoughtful in your initial actions in response.

3. Get some sleep.

One of the most common refrains we hear in representing attorneys facing ethics grievances or complaints in the tri-state area (NJ, NY and PA), is that, since they received notice that the matter was pending, they have “not slept.” It makes perfect sense; that lack of sleep can degrade their ability to make it through a process that will be stressful and draining.

The attorney/respondent must engage in self-care so as to accomplish two critical goals: first, to present the best defense possible and second, to maintain a competent level of representation for their other clients.

4. Tell the truth.

This one may seem rather banal, but it is absolutely critical that your response to the grievance or complaint not shade the truth of what happened in a manner that misleads or misrepresents. Doing so can leave you in the paradoxical situation of defending against an allegation that is completely baseless and can be disproven in short order, yet in the course of doing so, committing a new ethics infraction by misleading the investigator or presenter as to the underlying facts. In re Gavel, 22 N.J. 248, 263 (1956)

As is often said, sometimes the cover up is worse than what is being covered up. Prevailing law requires a full and complete response to the inquiries of the ethics authorities with full candor. Unlike civil litigation in which there is a degree of variation in how the same story might be told by the defendant versus the plaintiff, in the ethics context the facts should not be “pitched” one way or the other; they should be recounted in a truthful and even-handed manner.

5. Hire counsel. 

Many of our clients come to us for ethics defense representation after they handle the initial steps themselves. This can result in our needing to clarify errors in the factual summaries that were previously provided by our client to the ethics authorities. It can also require supplementing legal arguments that were not adequately supported, or indeed, a complete reordering of the legal strategy.

Under most circumstances, hiring counsel will bring a level of consistency and uniformity to the process of defending against the grievance or complaint. It will also allow the attorney/respondent to  bring to light mitigating factors of which they may not be aware that may potentially reduce the ultimate quantum of discipline.

Please Contact Us if You Are Seeking Counsel to Defend Against an Ethics Grievance or Complaint in NJ, NY, or PA

The Nissenbaum Law Group welcomes inquiries from attorneys who require representation for the defense of ethics grievances or complaints IN New Jersey, New York or Pennsylvania. For an overview of the firm’s practice representing attorneys in defense of ethics matters, please see our New Jersey Attorney Ethics practice page.