Controversy in Queens

A current controversy in the borough of Queens in New York City exemplifies and illustrates the symbiotic phenomena of prosecutorial misconduct and lack of professional discipline. From 2001 to 2011, there were 30 New York state and federal court decisions overturning convictions explicitly because of prosecutorial misconduct, and the grievance committees publicly disciplined only one of the prosecutors identified by a court to have committed misconduct. Twenty-one current and former prosecutors from Queens were publicly identified by judges to have committed misconduct. Despite the fact that these instances of misconduct were established and announced publicly by a court of law after a contested adversarial process, none have been disciplined. Rather, they continue to practice law in New York. Some still work as prosecutors, and, of those, some have been promoted. The problematic nature of this situation in Queens is even further compounded by the fact that disciplinary investigations and other proceedings in New York, unlike those in the vast majority of states, are secret.

The Complaints

To challenge and remedy this combination of misconduct and lack of discipline in Queens, several prominent law professors filed 21 ethics complaints against a number of prosecutors with the appropriate disciplinary authorities. All the professors are members of the New York bar and experts on the criminal justice system. Well before each complaint, a judge had found that the prosecutor named in each complaint engaged in misconduct. In order to inform the public of the misconduct and disciplinary inaction and motivate ethics authorities to address prosecutorial misconduct, the professors publicized their complaints through the use of a dedicated website and encouraged members of the public to express their views. A group of prominent and well-respected New York lawyers recently used the same combination of public advocacy and an ethics complaint in response to Rudy Giuliani’s unethical conduct in encouraging and assisting the filing of baseless lawsuits to challenge Donald Trump’s loss of the 2020 presidential election.

The Letter

In response to the professors’ public filings of their well-supported complaints, the chief legal officer for the city of New York, its Corporation Counsel, sent a truly remarkable letter to one of the grievance committees and to each of the professors. In it, the Corporation Counsel failed entirely to address the critical underlying issues of prosecutorial misconduct and lack of discipline in Queens. Instead, he challenged the fact that the professors had publicized and talked about their complaints. He made the novel and totally illogical claim that under New York law, it was illegal for the professors to openly talk about their complaints.

Despite the fact that New York’s ethics rules, like those of every other jurisdiction, require lawyers such as the professors to report misconduct by another lawyer, the Corporation Counsel claimed that the professors’ actions constituted “misuse and indeed abuse of the grievance process to promote a political agenda.” In staking out this position, the Corporation Counsel was oblivious to or chose to ignore the recent and high-profile example of New York lawyers publicizing their ethics complaint against another lawyer—the many notable lawyers who, as noted above, publicized an ethics complaint against Rudy Giuliani. None of these lawyers were criticized for publicizing their ethics complaint, much less treated as having misused or abused the grievance process. Instead, they were widely praised.

The Lawsuit

In response to the threatening letter, the professors filed a civil action that is currently pending in the U.S. District Court for the Southern District of New York. It advances a number of equal protection and First Amendment constitutional claims as well as claims that the New York Corporation Counsel’s position is unsound as a matter of policy as well as in its interpretation of New York law.

In support of the professors whose actions are the focal point of the current controversy and in response to the Corporation Counsel’s letter, other professors across the country are currently circulating an open letter in support of these professors.

Our View

To be clear, we completely support what the professors in Queens are doing and have both signed the open letter referred to above. We have argued in prior columns and in our scholarship about the need to reduce prosecutorial misconduct and use professional discipline as a means for doing so in appropriate cases.

The enforcement of ethics rules against prosecutors is important for a number of reasons, some obvious, others not so obvious. First, the threat of ethical sanctions can obviously deter misconduct through fear of the sanction. Second, both the threat of sanctions and the reality of their imposition can also change prosecutorial behavior in more subtle ways, for example, by motivating prosecutor offices both to educate their employees about their ethical obligations as well as to encourage, monitor, and internally enforce adherence to them. Enforcement of and education about ethics rules also helps embed them in office attitudes and culture, something that may well be more influential than written rules. Finally, enforcement is important for the purpose of incapacitation. Some violations may be so egregious or numerous that the prosecutor should at least be fired. Some should have their licenses to practice law revoked.

We also believe that cloaking the enforcement or lack of enforcement of ethics rules in secrecy, especially in relation to prosecutors, is a bad policy. The situation in Queens is a case on point. Transparency helps ensure that ethics authorities adhere to their duties to investigate and adjudicate ethics complaints, including initiating sua sponte investigations in cases in which a judge makes a finding of prosecutorial misconduct. It also enables general deterrence to operate by making it possible for other prosecutors to know about the imposition of discipline and its cause.

Uncertainty about whether or not prosecutors are engaging in misconduct and escaping ethical sanction undermines public trust in a criminal justice system that is now plagued by problems and badly in need of reform. Indeed, such uncertainty undermines faith in the basic concept of rule of law—that all persons, including prosecutors charged with enforcing the law, will be held to account for failing to adhere to their legal and ethical obligations.

Arguments for Secrecy

Two primary arguments are advanced in support of secrecy for the lawyer disciplinary system. The first is that secrecy will encourage clients and others to report lawyer misconduct. The second is the fear of possible damage to a lawyer’s reputation if an unfounded complaint is made, even if the lawyer is exonerated.

Perhaps secrecy does encourage reporting in some cases. But even in a system that does not compel secrecy, a complainant may always choose not to publicize a complaint. But does it make sense to argue, as the Corporation Counsel does, that requiring a complainant not to speak publicly encourages reporting? In other words, are those wronged by a lawyer more likely to report the lawyer if the consequence is that they are compelled by law not to talk to anyone about it? If anything, this would create a powerful disincentive to reporting.

Do we need secrecy to protect lawyers against possible reputational damage from an unfounded complaint? There are already informal disincentives that discourage making any ethics complaint against a lawyer, whether valid or invalid, such as the need to work in the future with the lawyer in question. Defense lawyers who regularly interact with the same prosecutor in particular may be quite reluctant to make a complaint against that prosecutor because they are reliant on the prosecutor’s goodwill in reaching favorable guilty plea agreements and access to discovery. And there are significant disincentives that specifically discourage false reporting. One is the possible fear of being publicly labeled as unreliable or untrustworthy if the complaint is eventually determined to be baseless. There are also a number of rules that bar and punish the making by a lawyer of a baseless claim against another lawyer.

Prosecutors Circling the Wagons

In the past, prosecutor organizations have circled their wagons in defense of the New York status quo and fought a number of legislative initiatives to change it. In the Corporation Counsel’s letter, he argues that the complaints by the professors in effect are “an attack on prosecutors generally.” This makes no sense. A complaint against one prosecutor is not an attack on all prosecutors any more than a complaint about one police officer is an attack on all police officers.

How is it in the interests of the many prosecutors who do not engage in misconduct to shield or mask prosecutors who do engage in misconduct? Misconduct by some prosecutors is likely to create broad-based public mistrust and doubt of all prosecutors, something clearly against the interests of prosecutors who do not engage in misconduct. Prosecutors who do not engage in misconduct may also feel that colleagues who do engage in misconduct deserve to be sanctioned because such misconduct is blameworthy, especially on the part of one chosen to enforce the law. Thus, the idea that misbehaving prosecutors must be shielded to advance the interests of all prosecutors is nonsensical.