Attorney Grievances: The Fight for Confidentiality

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Attorney Grievances: The Fight for Confidentiality

New York Judiciary Law Section 90(10) mandates that all disciplinary proceedings be closed to the public unless and until public discipline is imposed. This longstanding policy of confidentiality for disciplinary proceedings and documents, rooted in the history of New York’s bar, limits the reputational harm to attorneys subjected to unfounded complaints, promotes trust in the legal profession, encourages the participation of witnesses, and prevents the disclosure of privileged and sensitive personal information.

This disciplinary scheme has operated effectively in New York for the past 80 years. Over that time, the four departments of the Appellate Division have maintained oversight of attorney discipline, balancing the competing rights of privacy with the public’s right to access. In the hands of the grievance committees, attorney discipline imposed under the Judiciary Law has deterred improper and unethical attorney conduct while protecting the public and preserving the integrity of the judicial system as a whole.

Recently, however, the wisdom underlying Judiciary Law Section 90(10) has been under attack. Detractors have argued that the level of confidentiality in New York disciplinary proceedings is inconsistent with the First Amendment and with the national practice of affording public access to all disciplinary documents and proceedings. Last year, in Civil Rights Corps. v. Cushman, a group of academics advanced those very arguments in a federal action against the Appellate Division, Second Department.

Specifically, in Cushman, the plaintiffs argued that the First Amendment guarantees public access to certain grievance committee dispositions related to complaints they filed against prosecutors who had obtained convictions that were later reversed for prosecutorial misconduct. The United States District Court for the Southern District of New York (Marrero, J.) agreed with plaintiffs, granting them summary judgment and entering a declaratory judgment creating a qualified public right of access to the grievance committee dispositions related to the complaints and any resulting formal disciplinary proceedings in the Second Department.

The appeal of the judgment in Cushman is now pending before the Second Circuit.[1] The Second Department and amicus curiae, the New York State Bar Association, argue in their appellate briefs that the district court erred in concluding that there is a qualified right of access to grievance committee dispositions, which dispositions may include dismissals of unfounded complaints, referrals of attorneys to diversion programs, letters of advisement, and private admonitions. These dispositions result from investigations and not any formal hearing or trial, and their publication would intrude on and impair the disciplinary process.

The Cushman case raises two important practical questions. First, does history support a constitutional right to inspect disciplinary investigations? Second, would converting today’s closed system into an open file actually serve clients, courts, and the broader public?

The short answer to both questions is no.

The Statutory Balance New York Struck in 1945

Since 1945, Judiciary Law Section 90(10) has reflected a carefully negotiated bargain. All papers “upon any complaint, inquiry, investigation or proceeding” remain private unless and until the Appellate Division finds misconduct and imposes public discipline.[2] The rule is not an anomaly. Grand jury minutes, judicial misconduct investigations, physician licensing complaints, and other sensitive matters follow the same pattern: secrecy while facts are gathered, openness once a formal accusation is ready for adjudication. That model accords with intuitive fairness and accounts for the risk that the accused’s reputation could be ruined by allegations that may prove baseless.

**What the Cushman Plaintiffs Want**

The Cushman plaintiffs argue that the First Amendment’s “experience and logic” test requires public access to three categories: grievance committee letters that dismiss complaints, letters that admonish or divert lawyers without a hearing, and the pleadings that launch formal proceedings. Neither half of the “experience and logic” test is satisfied.

Historically New York has never opened investigative materials. From the creation of the Appellate Division in 1896 through the present, discipline was treated as a quasi-prosecutorial, not an adjudicative, function and proceedings remained confidential until a petition and answer were filed with the court. That tradition is vivid in the legislative record and in early cases such as People ex rel. Karlin v. Culkin,[3] in which Judge Cardozo spoke of the attorney discipline inquest as a secret inquiry designed to protect both the bar and the public.

Logic also favors privacy. More than 90% of grievances go nowhere.[4] In the Second Department, of these claims dismissed, more than 40% are dismissed for failure to state a claim, indicating that many complaints lack merit and should not be made public.[5] Publishing such complaints would therefore brand hundreds of innocent lawyers each year without improving consumer safety.

Four Practical Interests Served by Confidentiality

The debate often proceeds in abstractions, but four concrete interests illustrate why keeping the file closed until probable cause is the sounder course.

Protecting reputations and livelihoods. Unlike criminal defendants, lawyers facing a grievance have no right to a speedy hearing; investigations routinely last 18 to 24 months. In our referral-driven marketplace, a public allegation, even if later disproved, can destroy a solo practice long before charges are dismissed. The Legislature knew this in 1945 and designed Section 90(10) accordingly.
Encouraging candid complaints and cooperation. Clients who submit grievances often attach privileged retainer papers, health records, or descriptions of family finances. They do so because they trust that the file will not become a news article. Witnesses similarly speak more freely when they know their testimony will not be posted on the internet the next day.
Preserving the integrity of the investigation. Once a matter is public, lawyers on both sides may try their case in the press; potential witnesses read coverage; strategies are telegraphed. That dynamic is precisely why grand jury secrecy is enforced so zealously, and why courts have upheld confidentiality in physician discipline proceedings.[6] The same dangers attend attorney regulation.
Allowing proportionate, remedial responses. Many grievances reveal improper bookkeeping, missed deadlines or stress-induced lapses, not dishonesty. Diversion programs, CLE, trust account audits, and mental health counseling let committees correct those problems privately and promptly. If every diversion letter became a headline, lawyers would fight even minor charges through full litigation, draining grievance committee resources and delaying justice for truly aggrieved clients.

Allowing the Legislature To Act

Of course, New York’s lawyers must be accountable for improper or unethical conduct, and transparency in matters regarding attorney misconduct is eminently warranted when bad actors are involved. However, as discussed above, not every disciplinary complaint has merit. In that vein, Judiciary Law Section 90 strikes a delicate balance between the protection of the public and the preservation of the rights of attorneys who have not yet been found guilty of misconduct.

Any changes to the rubric of Judiciary Law Section 90 must be made only after careful consideration by the Legislature. The Legislature could choose to amend the statute to make disciplinary proceedings public at an earlier juncture, such as after a formal petition is filed, when the grievance committee finds probable cause to believe the attorney engaged in professional misconduct warranting the imposition of public discipline. Indeed, it has been argued that when the grievance committee authorizes a formal petition, the system pivots from investigation to adjudication, the respondent can answer in open court, motions may be filed, and a referee or the Appellate Division itself will determine the facts, justifying disclosure after probable cause is found.

However, the determination of when a proceeding should be made public is one for the Legislature, not for the courts, to make.[7] At a minimum, broad public access should never be granted before the conclusion of the grievance committee’s investigation and finding of probable cause.

Consequences of the District Court Ruling if Affirmed

Should the Second Circuit affirm, the ripple effects would be wide. The statements of every complainant and witness might appear in the press, discouraging candor. Lawyers would face publication of raw allegations that the grievance committee ultimately rejects. Diversion programs would lose participants.

Social media will intensify these harms. Negative information spreads quickly online and there is little recourse to correct user-generated content disseminated through social media outlets. Unsealed allegations filed against attorneys could be posted and reposted online ad infinitum before attorneys have a chance to respond to and defend against them, causing irreparable reputational damage in the meantime. Further, widespread publicity online of unfounded complaints would add fuel to the fire of the public’s eroding trust in the judicial system. Now more than ever, New York must protect due process and public confidence.

Moreover, unsealing disciplinary proceedings and documents would make New York an outlier. At least four states keep disciplinary matters sealed until final discipline; most others keep them sealed until probable cause.[8] None recognizes a public right of access at the screening or investigative phase.

Conclusion

The public’s faith in lawyers rests on two pillars: confidence that misconduct will be punished and confidence that the innocent will not be unjustly tarnished. Judiciary Law Section 90(10) gives New York both, by ensuring confidentiality during investigation and transparency once charges are sustained. The Cushman plaintiffs would pull one pillar away, damaging the very system they seek to improve. As lawmakers revisit discipline for judges and lawyers alike, the bar should speak plainly: keep grievance committee files confidential. That single guardrail preserves reputations, encourages whistleblowers, and allows proportionate discipline, without compromising the openness that democracy demands.

In short, sunshine is vital, but so is shade. New York’s longstanding rule delivers just enough of each.

Justice Rolando T. Acosta, a litigation partner with Pillsbury Winthrop Shaw Pittman, served for a quarter-century as an innovative and community-minded New York trial and appellate judge, presiding over hundreds of bench and jury trials and thousands of appeals in civil and criminal cases. Most notably, he served on the New York State Supreme Court, Appellate Division, First Department, for 15 years, including for six years as presiding justice. Prior to his judicial service, Acosta held various posts with the Legal Aid Society, including attorney-in-charge of the largest civil trial office. He also served as first deputy commissioner and as deputy commissioner for law enforcement at the New York City Commission on Human Rights.

Dante W. Apuzzo is an attorney at Pillsbury Winthrop Shaw Pittman, where he specializes in complex commercial litigation and appellate practice. Before joining Pillsbury, he supervised the law department at the Appellate Division, First Department, and served as a principal court attorney to several New York State judges. He also taught appellate advocacy at St. John’s University School of Law.

Catherine Perez, an associate at Pillsbury Winthrop Shaw Pittman, focuses her practice on complex commercial litigation and intellectual property matters.

The authors represent the New York State Bar Association in Civil Rights Corps. v. Cushman at the United States Court of Appeals for the Second Circuit.

Endnotes:

[1] See Civil Rights Corps. v. Cushman, Case No. 24-2251.

[2] Alternatively, the court may unseal disciplinary records when good cause exists. See Judiciary Law § 90(10).

[3] 248 N.Y. 465 (1928).

[4] See the annual reports of NYSBA, Comm. on Pro. Discipline, https://nysba.org/committees/committee-on-professional-discipline.

[5] N.Y.S. Commission on Statewide Attorney Discipline, Enhancing Fairness & Consistency Fostering Efficiency & Transparency (Sept. 2015) at 53, https://ww2.nycourts.gov/sites/default/files/document/files/2020-10/AttyDiscFINAL9-24-1.pdf.

[6] Doe v. Office of Professional Medical Conduct, 81 N.Y.2d 1050 (1993); see also In re Doe v. Axelrod, 123 A.D.2d 21, 30 (1st Dep’t, 1986), rev’d on other grounds 71 N.Y.2d 484 (1988) (recognizing that patient as well as physician has an interest in insuring confidentiality).

[7] For example, the recent New York State Assembly Bill A7650, relating to the powers and authority of the State Commission on Judicial Conduct, aims to increase accountability and transparency in the judicial discipline process by ensuring that formal written complaints and hearing records become public. See https://www.nysenate.gov/legislation/bills/2025/A7650.

[8] See N.Y. Jud. Law § 90(10); Ala. R. Disciplinary Pro. R. 30; Del. Laws. R. Disciplinary Pro.

13; Iowa Code Ann. § 34.4; see Leslie C. Levin, The Case for Less Secrecy in Lawyer Discipline, 20 Geo. J. Legal Ethics 1, 21 (2007), https://heinonline.org/HOL/P?h=hein.journals/geojlege20&i=13. 21; Michael S. McGinniss, Sending the Message: Using Tech. to Support Jud. Reporting of Law. Misconduct to State Disciplinary Agencies, 2013 J. Pro. Law. 37, 81 (2013), https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/jpl_2013_02mcginniss.pdf.