Brooklyn

Who: A group of law professors filed an ethics complaint in March 2022 against attorney Bernarda Villalona, alleging that Villalona engaged in misconduct while prosecuting Errol Irving on behalf of the Kings County District Attorney’s Office (KCDAO). The law professors filed the complaint with the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, the body that handles ethics complaints against attorneys in Brooklyn, Queens, and Staten Island. The following summary is based on the complaint.

What: The ethics complaint, also known as a grievance, is based on a New York court decision, People v. Irving. According to the complaint, in the Irving case, the Appellate Division found that prosecutor Villalona made improper remarks in her closing argument (summation). The complaint notes that the court reversed the conviction on different grounds, but specifically identified Villalona’s improper arguments as ones that denigrated the defense, vouched for the strength of the state’s case, and asked the jury to make inferences not based on the evidence.

What rules are involved: The ethics complaint notes that as far back as 1899, the New York Court of Appeals cautioned prosecutors against appealing to “prejudice” or seeking conviction “through the aid of passion, sympathy or resentment.” The Court of Appeals has explained that a prosecutor must not vouch for the strength of her own case because of the “possible danger that the jury, impressed by the prestige of the office of the District Attorney, will accord great weight to the beliefs and opinions of the prosecutor.” The Court of Appeals has similarly held that in summation, a prosecutor must not “call upon the jury to draw conclusions which are not fairly inferable from the evidence.” Finally, the Court of Appeals has condemned prosecutors for resorting to name-calling and directing disparaging remarks towards defendants.

Prosecutors wield immense power, the power to seek punishment on behalf of the state, and should be held to the highest ethical standards. The grievance alleges that Villalona’s conduct violated the following ethical rule:

• Rule of Professional Conduct 8.4, prohibiting attorneys from engaging in conduct prejudicial to the administration of justice or reflecting adversely on their fitness to practice law. 

What can be done about it: The law professors’ complaint calls on the Grievance Committee to investigate and issue public discipline. It also calls for a broader investigation into other cases prosecuted by the same prosecutor, and to determine whether KCDAO supervising and managing attorneys complied with their duties under Rule 5.1 of Professional Conduct.

Unfortunately, the Grievance Committee has not informed the professors or the public of the outcome of this ethics complaint or even whether the complaint is being investigated. Deprived of such information, the public has no way to evaluate whether this government body is doing its job. We call on the Grievance Committee to make transparent its proceedings and findings in this matter.

Note: This is a summary based on the grievance, click on the grievance below for more detail. The grievance authors do not have personal knowledge of any of the facts or circumstances of the attorney or case(s) mentioned; the grievance is based on court opinions, briefs and/or other documents cited therein.