NJ/NY/PA ATTORNEY ETHICS DEFENSE:
CRITICAL DIFFERENCES IN RECIPROCAL DISCIPLINE

The Nissenbaum Law Group has represented many attorneys who are licensed in more than one jurisdiction in the tri-state area of New York, New Jersey or Pennsylvania. Accordingly, the firm is familiar with the unique legal and procedural issues that confront an attorney facing an ethics complaint in one state that then must be reported for potential reciprocal discipline in another state. That is because an attorney facing an ethics complaint who is licensed in two or more of those states is often under a potential obligation to possibly precipitate an ethics complaint against themselves in the other state. Such clients need to be keenly aware of the this reciprocal ethics complaint requirement.

The advantage of being represented by counsel with an active ethics defense practice in all three states cannot be overemphasized. Even if the respondent to an ethics complaint is ultimately not found to have violated the Rules of Professional Conduct, there are triggers that differ state-by-state for when the attorney must advise the other jurisdiction(s) that an ethics complaint or a grievance has been interposed outside that state’s jurisdiction.

The Contrasting Quantum of Discipline from one Jurisdiction to the Other

One of the more compelling aspects of this is that a reciprocal state to which such information is reported can actually decide to impose greater discipline than the one in which the complaint was originally filed.

The New Jersey, New York, and Pennsylvania Defenses to the Imposition of Reciprocal Discipline

New Jersey Court Rule 1:20-14(a)(1) states in part,

(a) Reciprocal Attorney Discipline and Disability.

(1) Reporting Duty. An attorney admitted to practice in this state, including those attorneys specially authorized for a limited purpose or in connection with a particular proceeding, shall promptly inform the Director in writing on transfer to disability-inactive status or on imposition of discipline as an attorney or otherwise in connection with the practice of law in another jurisdiction, including any federal court of the United States or the District of Columbia, a state or federal administrative agency or other tribunal, a court of any state, territory, commonwealth or possession of the United States.

(2) Procedure. On the filing with the Board and service on the respondent by the Director of a motion for reciprocal discipline or disability attaching a certified or exemplified copy of a judgment or order that demonstrates that an attorney admitted to practice in this state, including those attorneys specially authorized for a limited purpose or in connection with a particular proceeding, has been transferred to disability-inactive status or disciplined as an attorney or otherwise in connection with the practice of law by another court, agency or tribunal, the respondent shall have 21 days after service of that motion to file and serve any brief containing any claim predicated on the grounds set forth in subsection (4) hereof that the recommendation to the Supreme Court of the imposition of the identical action or discipline by the Board would be unwarranted, together with the reasons therefor. The attorney shall have the burden of establishing by clear and convincing evidence the grounds asserted. The Director shall prosecute these proceedings and may submit a reply brief within 21 days after the expiration of the attorney’s time for filing.

The key here is that the respondent has 21 days after receiving a filed motion for reciprocal discipline to oppose that motion and advocate for a determination “that the recommendation to the Supreme Court of the imposition of the identical action or discipline by the Board would be unwarranted, together with the reasons therefor.” Id.

Likewise, the New York procedure found in the N.Y. Comp. Codes R. TIT. 22 § 1240.13 states that when the ethics committee obtains proof “that a person or a firm…has been disciplined by a foreign jurisdiction,” the respondent shall be given an opportunity to defend themselves by asserting any one or all of the following defenses:

(1) that the procedure in the foreign jurisdiction was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or

(2) that there was such an infirmity of proof establishing the misconduct as to give rise to the clear conviction that the Court could not, consistent with its duties, accept as final the finding in the foreign jurisdiction as to the respondent’s misconduct; or

(3) that the misconduct for which the respondent was disciplined in the foreign jurisdiction does not constitute misconduct in New York.

Finally, the Pennsylvania ethics regime incorporated in the Pennsylvania Rules of Disciplinary Enforcement states that

upon the face of the record upon which the discipline is predicated it clearly appears:

(1)  that  the  procedure was  so  lacking in  notice or  opportunity to  be heard as to constitute a deprivation of due process;

(2)  there was such an infirmity of proof establishing the misconduct as to give rise to the clear conviction that the Court could not consistently with its duty accept as final the conclusion on that subject; or

(3)  that the imposition of the same or comparable discipline would result in grave injustice, or be offensive to the public policy of this Commonwealth.

Additional Issues Respecting Reciprocal Discipline

The key point is that unethical conduct in one jurisdiction generally will be reviewed and have the potential to become the subject of discipline in another jurisdiction in which the respondent is licensed as an attorney. Accordingly, it is critical to keep in mind that the defense of an ethics complaint in the original jurisdiction may have to be largely repeated in the other jurisdictions. It is wise to keep in mind two overarching aspects of this sort of situation: (a) a respondent should take care to preserve the evidence and transcript of testimony submitted in the first jurisdiction because it may need to be submitted again in the other one (s), and (b) the respondent should be aware of the respective self-reporting requirements that may apply in the various jurisdictions.

Tri-State Attorney Ethics Representation by the Nissenbaum Law Group

The Nissenbaum Law Group welcomes inquiries from attorneys facing issues concerning reciprocal discipline in the tri-state area of New Jersey, New York and Pennsylvania.