Saturday, June 6, 2009

New Jersey Attorney Ethics Investigations - The "Ten-Day Letter"

You have just received a "ten day" letter from the NJ Attorney Ethics Committee. Someone has filed a grievance against you, and you are now a respondent in an Ethics matter. A person identifying herself as an Investigator for the Attorney Ethics Committee has given you ten days in which to reply in writing and to provide certain records and documents. Perhaps the grievant was a client or a former client. Perhaps it was an adversary. Hopefully, it was not a judge. You are instructed 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, advise your E & O carrier of the pending investigation. Not only may they provide counsel for you in an appropriate case, but your failure to advise them may result in forfeiture of coverage in a potential malpractice suit down the line. With or without insurance, you don't have much time to respond Ethics.

Intuition says you should exercise your right to remain silent; practice tells you to try to forestall the investigation. Should you cooperate with your prosecutors? Suppose you believe that your documents may actually 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 a few facts you should know. The Office of Attorney Ethics (OAE), under the state Supreme Court, is responsible for attorney discipline in New Jersey. It investigates all grievances against all attorneys. If the OAE decides that your case requires immediate attention, or if you happen also to be a defendant in criminal proceedings, the ethics case may be handled directly by the OAE in Trenton. In such a case, the Investigator who contacted you is probably a paid professional. Sometimes, the case originates "automatically" when an Attorney Trust Account check bounces. Those cases, too, are generally handled out of Trenton. It is not often clear from the first letter or phone call.

Most grievances, however, are investigated by the District Ethics Committees, (DEC), whose investigators are attorney volunteers in districts around the state. Following its investigation, the DEC will determine whether discipline may be required. If so, a formal Complaint will be filed. Other times, the grievance is dismissed. Sometimes, in minor cases, you may be offered 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 that you know that the OAE has the power to summarily suspend your license merely for your refusal to respond to respond to the ten-day letter. Usually, you will 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) can result in additional measures against you, including, in appropriate cases, summary disbarment. While the Ethics Committee cannot put you in jail, it can do something that the criminal courts cannot: it may penalize you for "pleading the fifth". Unlike the trier of fact in a criminal case, an Ethics Committee Hearing Panel and the rest of the OAE, and even the Supreme Court, may draw a negative inference from your non-cooperation or your failure to appear or produce evidence or from your refusal to testify.

That is because there is no Constitutional, or even statutory right, to practice law - there only a license, not unlike a driver's license. Where a trade or profession must be regulated by the state, and the practitioners must be licensed, the state may impose conditions and restrictions on that license. Accused violators do not get a jury, and the standard of proof is "clear and convincing," not the Constitution's "no reasonable doubt" standard.

Of course, if your ethics case also involves (or may involve) criminal charges against you or your client or someone in your firm, consult immediately with an attorney who has appropriate expertise. The issues are complex, the stakes are high, and there is no standard approach.

New Jersey Attorney Ethics decisions invariably give credit to attorneys who cooperate fully with investigations against them. They generally discipline attorneys who don't. While you should always have experienced counsel whenever you are the focus of an ethics grievance, if you wish to continue to practice law, cooperation with Ethics is a no-brainer.

Marc Garfinkle is Adjunct Professor of Persuasion and Advocacy at Seton Hall University Law School. He is former Chair of the N.J. Supreme Court District Attorney Ethics Committee (DistVB), and is currently the Public Defender for the Township of Livingston. He has been a panelist for the N.J.B.A's Institute for Continuing Legal Education on the subject of Juvenile Justice and has been chosen to the teaching faculty of the National Institute of Trial Advocacy. He appears frequently on television and radio in connection with legal topics. For more information please visit

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