NYS BAR ASSOCIATION PRESIDENT DAVID MIRANDA URGES MORE DISCOVERY IN ATTORNEY DISCIPLINARY CASES

ALBANY, NY (07/28/2015)(readMedia)-- New York State Bar Association today called for enhanced due process in disciplinary proceedings, providing attorneys with more information about the charges they face.

"As you know, affording due process to anyone accused of wrongdoing is certainly a fundamental requirement of our legal system," State Bar Association President David P. Miranda testified at a hearing of the state Commission on Statewide Attorney Discipline in Albany.

Miranda cited a report by the Bar Association's Committee on Professional Discipline on the discovery procedures in attorney disciplinary hearings in the 50 states and the District of Columbia. It reviewed the discovery afforded in each state based on three categories, the lowest being "little or no discovery."

"In looking at New York, the Committee found that all four Departments of the Appellate Division authorize limited or no discovery. While each has somewhat different provisions, all are within this category. Thus, we in New York fall within a relatively small minority of the states that provide little or no discovery," he said.

Only six other states are rated as having "little or no discovery," the report found.

The report was approved by the Association's Executive Committee on July 24, making it the policy of the organization. The report is available at www.nysba.org/substantivereports.

The State Bar proposal calls for limited fundamental discovery, because extensive discovery, Miranda acknowledged, can delay resolution of proceedings.

In light of that concern, the State Bar is proposing "five modest recommendations" to enhance the discovery process in disciplinary proceedings. They are:

• During the investigative phase, the respondent should be provided with the initial complaint and supplementary materials.

• Also during the investigative phase, the respondent should be given access to any exculpatory material and portions of the Disciplinary Committee's files that are not work product and would not jeopardize the investigation.

• Once the charges are presented, the respondent should have the clear authority to subpoena documents from third parties. The respondent should have the ability to request documents from the Disciplinary Committee.

• Finally, more extensive discovery should be available upon application and a showing of good cause. It would be up to a neutral referee to authorize the depositions of the complainant and/or any fact witness or expert the disciplinary counsel intends to call at the hearing.

"The New York State Bar Association believes that these proposals will add to the fairness of the proceedings without causing the type of unnecessary delays we sometimes see in the more expansive discovery permitted in civil litigation," Miranda said.

The state Commission on Statewide Attorney Discipline in Albany was created by Chief Judge Jonathan Lippman earlier this year to review the state's disciplinary system and to recommend ways to enhance its efficiency and effectiveness. The Albany hearing was the commission's first. Additional hearings are scheduled for Buffalo (August 4) and New York City (August 11).

The 74,000-member New York State Bar Association is the largest voluntary state bar association in the nation. It was founded in 1876.

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