The valiant New York State Bar Association and the Sgt. Schultz defense - see no evil, hear no evil

In 2009, New York State Bar Association surveyed 51 jurisdictions (all the states of the U.S. and the District of Columbia) to verify what kind of discovery, if any, U.S. jurisdictions provide to attorneys in attorney disciplinary proceedings.

On June 4, 2009, after the full survey, the NYSBA came up with the following results (I reduced the results into a table for convenience of reading) :

Group1	Group2	Group3
8 states and 3 out of 4 NYS departments appear to afford little to no discovery (page 5)	6 states and 1 NYS App. Div. Judicial Department “appear to provide” for “limited discovery” (certain kind of document production and witness information, but no express provision for depositions by respondent attorney)	35 states and the District of Columbia appear to provide for a fair amount of discovery (some states make their regular civil rules of procedure fully applicable to attorney disciplinary proceedings)
1.     Nevada 2.     South Dakota 3.     Kansas 4.     Virginia 5.     Delaware 6.     Connecticut 7.     Massachusetts 8.     Rhode Island 9.     NYD AD1st 10.NYD AD3d 11.NYD AD4th	·         Colorado ·         Hawaii ·         Tennessee ·         Michigan ·         Pennsylvania ·         New Jersey ·         NYS AD2d	·         Wyoming ·         Texas ·         New Mexico ·         Idaho ·         Montana ·         Wisconsin ·         Oregon ·         West Virginia ·         Washington ·         Alaska ·         Maine ·         Utah ·         California ·         Arizona ·         North Dakota ·         Oklahoma ·         Nebraska ·         Missouri ·         Arkansas ·         Louisiana ·         Iowa ·         Minnesota ·         North Carolina ·         South Carolina ·         Mississippi ·         Florida ·         Indiana ·         Illinois ·         Kentucky ·         Georgia ·         District of Columbia ·         Alabama ·         Ohio ·         New Hampshire ·         Maryland ·         Vermont

Furthermore, the NYSBA has found in the same survey that New York belongs to the 16 "winner" states who do not expressly apply evidentiary rules to attorney disciplinary proceedings.  The "winners" are:

• ·         Hawaii
• ·         New Jersey
• ·         New York
• ·         Alaska
• ·         Massachusetts
• ·         New Hampshire
• ·         Ohio
• ·         Pennsylvania
• ·         Connecticut
• ·         Washington
• ·         Kansas
• ·         California
• ·         Oregon
• ·         South Dakota
• ·         Mississippi
• ·         District of Columbia

Nor does New York allow the attorney a public hearing unless it is "allowed" by the court for "good cause shown", so, as I wrote here before, competent adults (attorneys) must ask court's permission to waive their own privacy, a unique situation.

After making all these findings, NYSBA stated that it does not really consider it necessary to change the status quo in New York, but if New York gets around to do that, then NYSBA advises New York to change its rules like the majority of states already did.

No statement that stripping attorneys in disciplinary proceedings of basic rights afforded in other parties in litigation in the same state, such as:

• discovery (paper discovery, subpoena power for pretrial depositions and at the trial);
• applicability of evidentiary rules (exclusion of hearsay, for example);
• public due process hearings

attorneys are deprived of very basic constitutional protections, making the whole attorney disciplinary process unconstitutional.

No, our valiant New York State Bar Association simply stated - if New York decides to come around to change the existing rules (or lack thereof), then it would be advisable to do it as the majority of our neighbors already did, otherwise, changes are not really necessary.

A classic Sgt. Schultz conclusion - see no evil, hear no evil, even when that evil is screaming in your face, according to your own findings.

The new disciplinary rules - that afford no discovery, subpoena power, evidentiary rules or public hearings to attorneys - were introduced on April 1, 2009.

Within 2 months time the New York State Bar Association surveyed 51 U.S. jurisdictions as to availability of procedural rights to attorneys in disciplinary proceedings, verified that New York belongs to the handful of the minority of states that do not provide any such rights - and did NOTHING about it, moreover, stated in the conclusions that no action is necessary to change the status quo.

How can the public rely upon zealous representation by attorneys whose association cannot even fight for equal rights of its members with the rest of New York population?