New Jersey Lawyer Ethics Investigations: The “Ten Day Letter”

You just got a “ten day” letter from the NJ Bar Ethics Committee. Someone has filed a complaint against you and you are now a defendant in an ethics matter. You have been given ten days to respond in writing and provide certain records and documents by a person who identifies himself as an Investigator for the Lawyers Ethics Committee. Perhaps the victim was a client or a former client. Perhaps he was an adversary. Hopefully, he wasn’t a judge. He is 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, notify your E&O carrier of the pending investigation. Not only can they provide you with an attorney in an appropriate case, but their failure to advise may result in loss of coverage in a possible future malpractice lawsuit. With or without insurance, you don’t have much time to answer Ethics.

Intuition says that you should exercise your right to remain silent; practice tells you to try to anticipate the investigation. Should you cooperate with your prosecutors? Suppose you believe your documents may result in criminal charges being filed 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 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 criminal defendant, the ethics case may be handled directly by the OAE in Trenton. In such a case, the Investigator who contacted you is likely a paid professional. Sometimes the case is “automatically” originated when a check bounces from an attorney trust account. Those cases are also generally handled outside of Trenton. It is not usually clear from the first letter or phone call.

However, most complaints are investigated by District Ethics Committees (DECs), whose investigators are volunteer attorneys in districts across the state. After its investigation, the DEC will determine if discipline may be required. If so, a formal Grievance 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 are ultimately entitled 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 simply for your refusal to respond to the ten-day letter. You will generally be given a few extra 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 failure) may lead to further action against you, including, in appropriate cases, summary disqualification. While the Ethics Committee can’t put you in jail, it can do something the criminal courts can’t: it can sanction you for “putting yourself 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, can draw a negative inference from your lack of cooperation or your failure to appear or produce evidence. evidence or its refusal. to declare

This is because there is no constitutional, or even legal, right to practice law; There is only one license, similar to a driver’s license. When a trade or profession must be regulated by the state, and practitioners must be licensed, the state may place conditions and restrictions on that license. Accused violators don’t get a jury, and the standard of proof is “clear and convincing,” not the Constitution’s “without 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 company, consult an attorney with the appropriate experience immediately. The issues 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 cooperate fully with investigations against them. They generally discipline attorneys who don’t. While you should always have an experienced attorney with you whenever you are the focus of an ethics complaint, if you wish to continue practicing law, cooperation with Ethics is a no-brainer.