NY ATTORNEY ETHICS DEFENSE

The Firm’s Approach to Defending Attorneys Accused of Ethical Infractions

Ethics matters in New York generally begin at the Attorney Grievance Committee level. If they proceed, normally the Appellate Division may also directly consider them.

They have a rhythm that provides certain nexus points at which they potentially can be resolved. For example, the initial Complaint that is submitted to the Attorney Grievance Committee for the applicable Judicial Department to handle can create the first opportunity to resolve the matter. It should be viewed not as a time when it is best to provide the least amount of information possible, but instead as an invitation to tell the entire story in a thorough and careful way—one that can potentially convince the investigator and/or those supervising him or her that it is appropriate to drop the matter. Likewise, if the matter is not dropped at that incipient point, there may be other opportunities to resolve it. Having said that, in the event that the matter proceeds to the hearing stage before a Referee or other finder of fact, the Nissenbaum Law Group is capable of vigorously defending it.

Each case is unique and requires a nuanced and customized approach. The Nissenbaum Law Group is available to defend attorneys from the initial submissions at the investigatory stage; to filing verified answers at the ethics complaint stage; to handling full-blown contested hearings.

The Firm’s Approach to New York Ethics Matters for Lawyers who Practice in More Than one State

One of the first questions that should be asked when an attorney is facing a New York ethics complaint is whether it has an impact on the attorney’s status as a member of the bar of other jurisdictions. This includes not just the state bars, but also the courts to which that attorney may be admitted.

Most states and courts have a notice requirement in that regard. Sometimes, all that need be done is to provide notice of the pendency of the investigation; in other instances, the main notice needs to be given when there is a disposition of some sort against the attorney. Either way, the key point is to keep in mind that not abiding by this self-reporting requirement can be a separate ethical lapse in itself, subjecting the attorney to discipline in that other jurisdiction.

The Firm’s Approach to New York Ethics Matters Regarding Attorney Trust Account Violations

Another area that has resulted in many of the attorney disciplinary complaints involves IOLA attorney trust accounts. This can range from not maintaining the proper bookkeeping and performing the correct reconciliations to outright misappropriation of client funds.

One of the keys to defending against such a claim is to involve a forensic accounting firm at the earliest possible point. It should be retained by an outside law firm, rather than the respondent. The rationale is that the work product doctrine may apply if the accountant is hired by the outside law firm, rather than the attorney who is the subject of the investigation.

Another aspect of defending such a claim is to highlight the distinction between what is essentially sloppy bookkeeping versus intentional misappropriation of client funds. The unfortunate truth is that all too often what happened was a combination of the two: an attorney who took funds that were not available for personal use, but the attorney did so by engaging in a process of denial or deliberate ignorance of what they were doing.

The Potential Disposition of the Ethics Matter

In the event that the matter is not dismissed, there is a range of discipline that may be imposed. The lawyer may receive a Letter of Caution, Admonition or Reprimand. The key point is that such a disposition does not generally involve a suspension or disbarment.

On the other hand, they can be taken into account if there is another ethics issue in the future. They can be used as a basis to enhance the quantum of discipline.

The Firm’s Approach to New York Ethics Matters Regarding Attorney Advertising

Attorney advertisements may not contain statements or claims that are false, deceptive or misleading. RPC 7.1(a)(1). The extensive and multi-faceted attorney advertising restrictions contained in RPC 7.1 are surprisingly complex. For example,

• An advertisement may contain statements that are reasonably likely to create an expectation about results the lawyer can achieve; statements that compare the lawyer’s services with the services of other lawyers; testimonials or endorsements of clients; or statements describing or characterizing the quality of the lawyer’s or law firm’s services so long as its dissemination does not contain statements or claims that are false and misleading (or otherwise violate RCP 7.1); can be factually supported by the lawyer or law firm as of the date on which the advertisement is published or disseminated; and is accompanied by the following disclaimer: “Prior results do not guarantee a similar outcome.” RPC 7.1(d)
• Advertisements via email must contain the notation “ATTORNEY ADVERTISING” in the subject line. RPC 7.1(f)
• In the case of a web site, any words or statements required by RPC 7.1 Rule to appear in an advertisement must appear on the home page and meta-tags or other hidden computer codes must utilize the proper verbiage and otherwise comply with RPC 7.1, even though they are not displayed on the website itself. RPC 7.1(h)

The Nissenbaum Law Group stands ready to assist attorneys both in seeking to comply with these and other advertising restrictions and in defending attorneys accused of violating them.