(a) Grievance Panel. All attorney grievance and discipline matters are initially handled by a panel of judges, the "Grievance Panel."
(b) Committee on Admissions and Grievances.
(1) Appointment of Committee Members, Chair, and Secretary.
(A) A standing committee of members of the bar, the "Committee on Admissions and Grievances," is appointed by the court to serve staggered three-year terms.
(B) The court designates a Committee member to serve as chair, and appoints a bar member to serve as secretary. The Committee's secretary is not entitled to vote on its proceedings.
(A) The court's Grievance Panel may refer to the Committee, for investigation, hearing and report, the following types of matters:
(i) an accusation or evidence of attorney misconduct, including affirmative misconduct, negligent conduct, or conduct caused by or resulting from physical or mental infirmity, or the use of alcohol, drugs or other substances;
(ii) any other circumstance suggesting that an attorney may be unable to meet obligations to the court; or
(iii) any other situation in which the Grievance Panel seeks the guidance of the Committee, including matters relating to applications for admission or reinstatement to the court's bar, possible reciprocal discipline based on the imposition of discipline by another court or bar, or possible discipline based on an attorney's criminal conviction.
(B) The Committee may refer a matter to an appropriate attorney disciplinary authority for preliminary investigation, or may conduct a joint investigation with that authority. For the purpose of this rule, an attorney disciplinary authority includes any court, bar association, attorney admissions or discipline committee, government agency, or other licensing authority responsible for regulating the conduct of attorneys practicing law in that jurisdiction.
(3) Committee Proceedings.
(A) Investigation. Unless the Grievance Panel directs otherwise, the Committee may commence an investigation of a matter referred to it before the provision of notice to the attorney. The Committee determines the appropriate extent and methods of investigation.
(B) Notice of Charges and Order to Show Cause. If the Committee determines to bring charges against an attorney, it will provide the attorney with a written notice of the charges and the reasons the conduct may warrant the imposition of discipline or other corrective measures, and will order the attorney to show cause why discipline or other corrective measures, either specified in the notice and order or to be later determined, should not be imposed. A notice and order is served on the attorney personally or by certified or registered mail.
(C) Representation by Counsel. An attorney subject to proceedings under this rule is entitled to be represented by counsel throughout the proceedings.
(D) Attorney Answer to Notice of Charges and Order to Show Cause. Unless the Committee directs otherwise, the attorney must respond to the notice of charges and order to show cause within 28 days after service by filing an answer, any supporting evidence and any request for a hearing.
(i) Absent a court order to the contrary, the attorney may examine all documents in the record before submitting an answer.
(ii) The answer must include the following information: (a) a list of all bars to which the attorney is admitted, including all bar numbers and other bar identification information; (b) a list of all cases pending before the court in which the attorney is involved; (c) a list of any pending or previous disciplinary proceedings, and any discipline imposed, by an attorney disciplinary authority; (d) a statement of the alleged facts that are controverted; (e) the basis on which any controverted facts are disputed; and (f) any additional facts that are relevant to the Committee's determinations on the need for discipline or other corrective measures, including facts relevant to defense or mitigation.
(iii) The attorney must produce all documents requested in the Committee's notice of charges and order to show cause.
(iv) The answer must be made under oath or in such other form that the penalties for perjury apply.
(v) A copy of the answer may, in the discretion of the Committee, be furnished to a complainant or to other persons whose participation is relevant to the proceeding.
(E) Hearing Procedures. After the attorney has answered the Committee's notice of charges and order to show cause, or after the time to answer has expired, the Committee may hold a hearing to take testimony and receive other evidence, to hear argument, or both. If the Committee holds a hearing:
(i) the Committee must provide at least 14 days notice to the attorney of any hearing;
(ii) the attorney has the right to appear, to present witnesses and other evidence, and to confront and cross-examine under oath any witness against the attorney;
(iii) the Committee, or the person presiding over the hearing, may announce and be governed by any other rules of procedure warranted by the circumstances;
(iv) the attorney and all witnesses must testify under oath or affirmation; and
(v) a record and transcript of the hearing must be made.
(F) Subpoenas and Other Orders.
(i) Subpoenas and Orders Requiring Production of Evidence, Testimony, or Examination. The Committee or the attorney who is the subject of a proceeding before the Committee may apply to the Grievance Panel, on a showing of good cause, for a subpoena or other order requiring (a) the production of relevant documents or other evidence in the possession of third parties or the attorney, (b) the presence and testimony of relevant witnesses or the attorney at a deposition or hearing, or (c) a witness or the attorney to submit to a physical or mental examination by a suitably licensed or certified examiner.
(ii) Protective Orders. The Committee, the attorney, or any other affected person may apply to the Grievance Panel for a protective order.
(iii) Sanction Orders. The Committee, the attorney, or any other affected person may apply to the Grievance Panel for an order sanctioning a person who fails to obey a Committee or Grievance Panel order or who violates the Committee's or the Court's confidentiality rules.
(G) Burden of Proof. A finding of misconduct must be supported by clear and convincing evidence. A finding as to any other issue, including issues pertaining to the imposition of discipline or other corrective measures, must be supported by a preponderance of the evidence.
(H) Exception to Procedures. In a particular matter, the Grievance Panel or the Committee may determine that one or more of the procedures described in this rule are unnecessary or inappropriate, in which case it will so advise the attorney.
(I) Effect of Attorney's Incapacity, Death, or Actual or Proffered Resignation on Committee Proceedings. Once a matter has been referred to the Committee by the Grievance Panel, the Committee in the first instance determines the effect of the subject attorney's incapacity, death, or actual or proffered resignation on Committee proceedings. That determination is then incorporated into the Committee's report to the Grievance Panel.
(4) Committee Report.
(A) Filing Procedure. The Committee must file with the clerk the record of its proceedings, a report containing its findings and recommendations, and any separate or dissenting statements of Committee members. The clerk retains the report under seal after furnishing the Grievance Panel with copies. The Committee may, at its discretion, inform a complainant or other interested party that the report has been filed with the court. The clerk mails a copy of the report to the attorney and makes the record of the proceedings available to the attorney.
(B) Committee Recommendations. The Committee may recommend to the Grievance Panel that the attorney be:
(i) removed from the bar of the court;
(ii) if not a member of the bar of the court, precluded from becoming a member or from appearing in future cases before the court;
(iii) suspended from practice before the court, for either an indefinite or a specified period of time;
(iv) publicly or privately reprimanded;
(v) monetarily sanctioned;
(vi) removed from the court's pro bono or Criminal Justice Act panels;
(vii) referred to another attorney disciplinary authority, law enforcement agency, or other agency or organization;
(viii) subject to other disciplinary or corrective measures as the circumstances may warrant, including any combination of the preceding possible measures; or
(ix) not subject to discipline and the charges dismissed.
(C) Attorney Response to Committee Report. Within 21 days after the filing of the report, the attorney must file a response conforming to the requirements of FRAP 27(d). The response may oppose, seek to mitigate, or waive objection to the report. The Grievance Panel may request that the Committee reply to the attorney's response.
(5) Decision by the Court. After receipt of the attorney's responding statement and any Committee reply (or after expiration of the time for the filing of the statement and reply), the Grievance Panel, or another panel of the court as directed by the Grievance Panel, rules on the matter within a reasonable time by majority vote.
(6) Confidentiality. All matters referred to, all proceedings conducted by, and all records possessed by the Committee remain confidential, unless the Grievance Panel orders otherwise, or the Committee acts under (b)(2)(B) or (b)(7). The Committee may make recommendations to the Grievance Panel concerning confidentiality issues, including the possible need for a protective order or an order sanctioning the violation of a confidentiality rule, or the desirability of making public, in whole or part, a matter that is otherwise confidential under these rules. The Committee may recommend public disclosure, or notification to a particular person or entity, in order to protect the public, the administration of justice, or the legal profession.
(7) Procedure to Disclose Information to a New York Stat Attorney Disciplinary Authority. A disciplinary authority of a New York State supreme court appellate division may request, from the Grievance Panel or the Committee, expedited disclosure of confidential records for use by that disciplinary authority in its own investigation or proceeding. The request shall be made in writing and submitted to the Grievance Panel. The request should, to the extent practicable, identify the nature of the pending investigation or proceeding and the specific records sought. The request may also seek deferral of notice of the request for so long as the matter is under investigation or consideration by the appellate division disciplinary authority. Upon receipt of the request, the Grievance Panel may determine the request or take any other action it deems appropriate. Prior to taking such action, the Grievance Panel shall seek the assurance of the appellate division disciplinary authority that any confidential records disclosed to the appellate division disciplinary authority in response to the request shall not be used for any purpose other than the investigation or proceeding pending before the disciplinary authority.
(c) Reciprocal Suspension or Disbarment.
(1) Notification Requirement. An attorney admitted to practice in this court who is disbarred, suspended, publicly censured, or otherwise disciplined by an attorney disciplinary authority must file with the clerk a copy of that disciplinary order within 28 days. For the purpose of this rule, an attorney who resigns from the bar of a state or court while under investigation for alleged misconduct is deemed disbarred by that state or court, and the attorney's resignation, along with any acknowledgment or acceptance of that resignation by the state or court, is deemed an order of disbarment.
(2) Reciprocal Order. When the court receives a copy of an order entered by an attorney disciplinary authority disbarring or suspending an attorney from practice, the clerk enters an order disbarring or suspending the attorney from practice before this court on comparable terms and conditions. This court's order becomes effective 28 days after it is filed, unless the court orders otherwise.
(3) Motion to Modify or Vacate. Within 21 days after the filing of this court's order, the attorney may move to modify or vacate the order. The motion will be decided by the Grievance Panel, unless referred to the Committee. The timely filing of a motion stays the court's order until the motion is determined. Unless good cause is shown, an untimely motion will not be considered.
(d) Attorney Convicted of Crime.
(1) Notification Requirement. An attorney admitted to practice in this court who has pled guilty to or been found guilty of a crime (a "guilty verdict") must notify the clerk in writing within 28 days after entry of the guilty verdict.
(2) Response to Notification.
(A) When the court receives notification of a guilty verdict for a serious crime, as defined below, the clerk: (i) immediately enters an order suspending the attorney, and (ii) serves a copy of the order on the attorney by mail at the attorney's last known address.
(B) When the court receives notification of a guilty verdict for a crime that is not a serious crime, the clerk forwards the relevant documents to the Grievance Panel, which determines whether to enter a suspension order, commence a disciplinary proceeding, or refer the matter to the Committee.
(C) The term "serious crime" means a federal or state felony, or a federal or state crime other than a felony that includes as a necessary element -- as determined by the statutory or common law definition of the crime in the jurisdiction where the plea or verdict has been entered -- any of the following: (i) interference with the administration of justice; (ii) false statement under oath; (iii) misrepresentation; (iv) fraud; (v) willful failure to file an income tax return; (vi) deceit; (vii) bribery; (viii) extortion; (ix) misappropriation; (x) theft; or (xi) an attempt, or conspiracy, or solicitation of another to commit a serious crime.
(3) Evidentiary Effect. A guilty verdict for any crime is clear and convincing evidence of conduct unbecoming a member of the bar.
(4) Motion to Modify or Vacate. The attorney may move to modify or vacate a suspension or other disciplinary order under (d). The motion will be decided by the Grievance Panel, unless referred to the Committee.
(5) Reinstatement. An attorney suspended under (d)(2) will be reinstated upon the filing of a clerk's certificate showing reversal of the underlying conviction, although the Grievance Panel may continue any proceeding then pending against the attorney.
(6) Disbarment. A suspension order under (d)(2)(A) will be converted to a disbarment order upon exhaustion of all direct appeals from a criminal conviction, unless the court orders otherwise.
Last modified 12/13/2021