COVID-19 has forced the grievance system to close its doors. To provide some context, for the last 32 years I have been either a disciplinary prosecutor or a counsel for attorney-respondents and this is only the second time in 32 years that the grievance system has been closed. After 9/11 the First Department’s disciplinary committee was closed for two weeks. It is expected that the current closure will be substantially longer and currently there is no projected date to re-open.
If you have a matter in the grievance system, this holding pattern, which began on March 16, could be good news or bad news from a grievance perspective. The closure is good news for those that are the subject of a disciplinary investigation or a pending proceeding that could result in the loss of their license because the matter is now on hold. The closure is bad news for those looking to be reinstated after a suspension/disbarment or wish to have a frivolous grievance dismissed because their investigation is also on hold.
In line with the whole court system, and in particular the Appellate Divisions, which supervise the grievance committees, the grievance committees are closed for all purposes. There are no limited exceptions as the court system has allowed for certain civil and criminal proceedings. This closure presumably applies to the admission committees (e.g., Character and Fitness), which are also under the supervision of the Appellate Divisions. At the present time neither the First nor Second Judicial Departments’ Character and Fitness Committees have noted on their websites that interviews and admissions are on hold. However, it is reasonable to assume that the Appellate Divisions will not be allowing bar applicants who are ready to be admitted to move ahead with an interview and admission at this time. More problematic, if an admission committee is reviewing an application due to a possible problem, these applications, which were already slowed due to additional scrutiny, will be further delayed.
Although there has been a formal announcement that all grievance committees are closed until further notice, there has been no notice as to whether the deadlines involving committee investigations have been officially suspended. Anything sent to the committees during their closure will presumably be sitting in a box. Thus, the deadlines are de facto moot. One question is whether a response should be sent to the committee in a timely fashion even if it will sit in an empty office, but that appears to be unnecessary. There is certainly nothing wrong with filing a submission during the closure, but it is hard to imagine a committee staff member reviewing a submission months from now who will complain that the response was not filed on time.
With respect to disciplinary matters before the Appellate Divisions, it appears decisions on motions submitted prior to the crisis, presumably months ago, are being issued, some having been issued last week. Yet, it is not evident at this time whether that will continue on matters submitted more recently and after COVID-19 pushed the court system into havoc. One example, the Second Department, has indicated generally it will decide motions in the future, but not with the regularity of Pre-COVID-19 decisions. It would appear that Appellate Divisions, like everyone else, is attempting to move ahead, but they are not sure of the future. With respect to motions not yet fully submitted, at the present time all motion practice relating to pending grievance matters is “stayed” until further notice. In other words, if a respondent filed a motion and the grievance prosecutor did not have an opportunity to respond before their office closed, presumably, that matter will be on hold. Conversely, if a respondent-attorney has not had a chance to respond to a committee motion, presumably, that the motion will likewise be deemed stayed.
As expected, law firms and even the courts have been adapting to allow the judicial system to move ahead under our current situation. However, historically, the grievance committees have lagged behind in employing technology. There is no electronic filing for the grievance committees and even emailing committee staff is not a uniformly accepted practice. It is doubtful in the near future that the committees will be incorporating new technology to keep the process moving ahead. More likely, they will wait for the “all clear” sign before surfacing and then beware of an inevitable and massive back log. With respect to the potential backlog, apply the good news-bad news breakdown noted above. One silver lining, the Appellate Division, First Department has published an e-mail address for their grievance committee for emergencies relating to grievance matters, AD1firstname.lastname@example.org, but it is not clear exactly what issues the committee will be able to address. Stay tuned.
If you have a matter in the grievance system, this holding pattern, which began on March 16, could be good news or bad news from a grievance perspective.