I just received a “ten days” letter from the NJ Attorney’s Ethics Committee. Someone has filed a complaint against you, and you are now a defendant in an ethics matter. The person identifying as an investigator on the attorney’s ethics committee has given you ten days to respond in writing and provide certain records and documents. The complainant may have been a client or former client. Maybe it was a discount. Hopefully, it was not a judge. You are required to cooperate with the investigation.
At this point, you should review your E&O coverage, specifically the notice requirements and terms of coverage. As required, notify your E&O of the pending investigation. Not only may they advise you in an appropriate situation, but your failure to advise them could result in forfeiture of coverage in a potential malpractice lawsuit down the line. With or without insurance, you don’t have much time to respond to ethics.
Intuition says you must exercise your right to remain silent; The exercise tells you to try to prevent the investigation. Should you cooperate with your prosecutors? Suppose you think your documents may in fact lead to criminal charges being brought against you? What if the investigator asks you questions whose honest answers amount to an admission of a 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), of the state Supreme Court, is responsible for the discipline of attorneys in New Jersey. Investigates all grievances against all lawyers. If the FBI determines that your case requires immediate attention, or if you are also a defendant in criminal proceedings, the ethics issue may be dealt with directly by the FBI in Trenton. In such a case, the investigator who contacted you is likely to be a paid professional. Sometimes, the issue “automatically” arises when the trust attorney’s account check bounces. These cases are also generally handled outside of Trenton. It’s often not clear from the first letter or the phone call.
However, most grievances are investigated by the District Ethics Committees (DEC), whose investigators are volunteer attorneys in areas around the state. After investigation, the DEC will determine if discipline is required. If so, a formal complaint will be made. Other times, the grievance is dismissed. Sometimes, in minor cases, you may be offered a diversion, which is a non-disciplinary and conditional solution to the case. In all cases, you are ultimately entitled to a full hearing on the charges.
It is important to know that the OAE has the ability to briefly suspend your license simply for your refusal to respond to the ten-day letter. Normally, you will be given a few extra days to comply, if you need it, but your further or continued failure to cooperate with the investigation (or even just appearing like this) could result in additional measures being taken against you, including, cases, brief unblocking. While the ethics committee can’t put you in jail, they can do something criminal courts can’t: they might punish you for a “fifth plea.” Unlike a fact-trial in a criminal case, the Ethics Committee Hearing Committee and the rest of the FBI, and even the Supreme Court, may draw a negative conclusion from your failure to cooperate, failure to appear or provide evidence, or from your refusal to testify.
This is because there is no constitutional, or even statutory, right to practice law – there is only a licence, not unlike a driver’s licence. Where the trade or profession must be regulated by the state, and the practitioners must be licensed, the state may impose conditions and restrictions on such licensing. Accused offenders do not get a jury, the standard of proof is “clear and convincing,” not the “no reasonable doubt” standard of the Constitution.
Of course, if your ethics case also includes (or may include) criminal charges against you, your client, or anyone in your organization, immediately consult an attorney with the appropriate experience. The issues are complex, the stakes are high, and there is no standard approach.
New Jersey attorneys’ ethics decisions always give credit to attorneys who fully cooperate with investigations against them. They usually discipline lawyers who don’t. While you should always have experienced advice when you are the focus of an ethical complaint, if you want to continue to practice law, cooperating with ethics is a no-brainer.