You just received a “ten day” letter from the New Jersey Bar 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 given him ten days to respond in writing and provide certain records and documents. Perhaps the victim was a customer or a train customer. Perhaps it 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 terms of coverage. As necessary, inform your E&O carrier of the pending investigation. Not only can they advise you in an appropriate case, but their failure to advise may result in the loss of coverage in a possible future negligence lawsuit. With or without insurance, you don’t have much time to respond Ethics.
Intuition says that you must exercise your right to remain silent; practice tells you to try to get ahead of 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 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 that 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 defendant in criminal proceedings, the OAE in Trenton can handle the ethics case directly. In such a case, the investigator who contacted you is likely to be a paid professional. Sometimes the case arises “automatically” when an attorney’s trust account check bounces. These cases are also generally handled from Trenton. It is often not 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, DEC will determine if discipline may be required. If so, a formal complaint 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 additional days to comply, if you need them, but your further or continued failure to cooperate with the investigation (or even the mere appearance of such) may result in additional action against you, including, in the event appropriate cases, summary disqualification. While the Ethics Committee cannot imprison you, it can do something that criminal courts cannot: it can sanction you for “alleging the fifth.” Unlike the factual examiner 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 from your failure to appear or appear. of 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, not unlike a driver’s license. When a trade or profession must be regulated by the state and professionals must be licensed, the state may impose conditions and restrictions on that license. Accused offenders do not have a jury, and the standard of proof is “clear and convincing,” not the Constitution’s standard of “no reasonable doubt.”
Of course, if your ethics case also involves (or may involve) criminal charges against you or your client or someone in your firm, 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 had 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.