You just received a “ten day” letter from the NJ Lawyers Ethics Committee. Someone has filed a complaint against you and you are now a defendant in an ethics matter. A person who identifies himself as a Lawyer Ethics Committee Investigator has been given ten days to respond in writing and provide certain records and documents. Perhaps the victim was a customer or a customer of the train. Perhaps he was an adversary. Hopefully, it wasn’t a judge. You are instructed to cooperate with the investigation.
At this point, you should review your E&O coverage, specifically the notification requirements and the terms of the coverage. As necessary, notify your E&O carrier of pending investigation. Not only can they provide you with an attorney in an appropriate case, but their lack of advice may result in the loss of coverage in a possible future negligence claim. With or without insurance, you don’t have much time to answer Ethics.
Intuition says that you must exercise your right to remain silent; practice tells you to try to anticipate the investigation. Should You Cooperate With Your Prosecutors? Suppose you believe that your documents may result in the filing of criminal charges against you. What happens if the investigator asks you questions whose truthful answers would be an admission of crime? Can they make you testify? What can they do if you don’t? What about the Fifth Amendment?
There are some facts you should know. The Office of Attorney Ethics (OAE), a branch of the state Supreme Court, is responsible for the discipline of attorneys in New Jersey. Investigate all complaints against all attorneys. If the OAE decides that your case requires immediate attention, or if you are also a criminal defendant, the OAE in Trenton can handle the ethics case directly. In such a case, the Investigator who contacted you is likely a paid professional. Sometimes the case arises “automatically” when an attorney trust account check bounces. Those cases are also generally handled outside of Trenton. It is not usually clear from the first letter or phone call.
However, most complaints are investigated by District Ethics Committees (DEC), whose investigators are volunteer attorneys in districts throughout the state. After its investigation, the DEC will determine if discipline may be required. If so, a Grievance will be filed. Other times, the complaint is dismissed. Sometimes, in minor cases, you may be offered a diversion, a non-disciplinary conditional resolution of the case. In all cases, you ultimately have the right to a full evidentiary hearing on the charges.
It is important for you to know that the OAE has the power to summarily suspend your license simply because of your refusal to respond to the ten day letter. You will generally be given a few extra days to comply, if you need them, but your additional or continued failure to cooperate with the investigation (or even the mere appearance of such failure) may lead to additional action against you, including, in appropriate cases, summary disqualification. While the Ethics Committee cannot imprison you, it can do something that criminal courts cannot do: it can sanction you for “declaring fifth.” Unlike the judge of fact in a criminal case, an Ethics Committee Hearing Panel and the rest of the OAE, and even the Supreme Court, can draw a negative inference from your lack of cooperation or your failure to appear or produce reports. evidence or its refusal. to declare.
This is because there is no constitutional right, not even legal, to practice law; there is only one license, similar to a driver’s license. When a trade or profession must be regulated by the state, and practitioners must be licensed, the state may impose conditions and restrictions on that license. Accused offenders do not get a jury, and the standard of proof is “clear and convincing”, not the “without reasonable doubt” standard of the Constitution.
Of course, if your ethics case also involves (or may involve) criminal charges against you or your client or someone at your company, immediately consult an attorney who has the appropriate experience. The problems are complex, the stakes are high, and there is no standard approach.
The ethics decisions of New Jersey attorneys invariably give credit to attorneys who fully cooperate with investigations against them. They generally discipline attorneys who don’t. While you should always have an experienced attorney whenever you are the focus of an ethics complaint, if you wish to continue practicing law, cooperating with Ethics is a no-brainer.