KEY DIFFERENCES BETWEEN DISCIPLINARY MATTERS AND CIVIL LITIGATION

One of the most important things for an attorney to understand when faced with a disciplinary proceeding is that the disciplinary process is not civil litigation. An attorney who understands the differences between a disciplinary matter and litigation is likely to have a far easier time navigating the disciplinary system than one who lacks that knowledge.

First, the disciplinary process proceeds differently than litigation. It begins with the filing of a complaint with the relevant disciplinary authority. The attorney against whom the complaint is filed typically will not know the complaint has been filed unless it survives the initial intake process (although this is not the case in all states). The majority of complaints are dismissed on intake as lacking merit. If the complaint survives intake, a request for the attorney’s position will be issued. This is often the first time the attorney knows a disciplinary matter has been commenced. The attorney has an opportunity to respond, after which disciplinary counsel determines whether to proceed. This is the time when an attorney should retain counsel experienced in disciplinary matters. We have all heard the adage “a lawyer who represents himself has a fool for a client.” This is even more true in the area of disciplinary matters. If the matter proceeds, it moves on to a formal complaint, an answer, discovery, a hearing, and ultimately, a recommendation for discipline. The high court of the state typically must approve any imposition of discipline.

Second, the disciplinary process is confidential, to a point. The intake process and the initial request for the attorney’s position are usually entirely confidential. An attorney facing a disciplinary matter that has survived intake will have an opportunity to respond to the allegations of ethical violations before the matter becomes public. (There are very rare occasions where an immediate emergency temporary suspension is warranted, and those matters may become public sooner.) This gives the attorney a unique opportunity to resolve matters which simply need explaining before they are required to be disclosed to the public.

Third, and most importantly, the way an attorney responds to the initial request for information can “make or break” the disciplinary process. Unlike litigation, it is not advisable to simply deny the allegations made. Instead, an attorney should provide responsive, thorough, and honest answers. It is critical to accept responsibility for mistakes and show remorse for misconduct or ethical violations. An attorney should share mitigating factors, or explanations for the conduct, when appropriate. 

Lastly, the attorney should provide a plan for moving forward that includes rectifying mistakes and putting procedures in place to prevent future problems. 

By understanding these key differences and, of course, retaining counsel experienced with the disciplinary process early, attorneys can navigate the disciplinary process more smoothly. 
 

^{Legal Update for Lawyers’ Professional Liability – November 2023 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2023 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}