Grievance Against Nicholas Fengos

Who: A group of law professors filed an ethics complaint in March 2022 against attorney Nicholas Fengos, alleging that Fengos engaged in misconduct while prosecuting Andre Hatchett on behalf of the Kings County District Attorney’s Office (KCDAO). The law professors filed the complaint with the Grievance Committee for 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 KCDAO report regarding People v. Hatchett. According to the complaint, In the Hatchett case, the KCDAO’s Conviction Review Unit in 2016 found that Fengos committed a Brady violation by failing to tell the defense that the only trial eyewitness previously identified another person as the perpetrator.

The complaint notes that Fengos prosecuted Andre Hatchett in a murder case, obtaining what was later determined to be a wrongful conviction. Hatchett survived 24 years and 350 days in prison and was freed only after the Innocence Project and other defense counsel successfully sought a reinvestigation of the case. In 2016, the court reversed Hatchett’s conviction, at the recommendation of the KCDAO’s Conviction Review Unit.

According to the complaint, during Hatchett’s prosecution, Fengos failed to disclose a crucial piece of evidence to the defense: the only trial eyewitness had previously identified a different person-not Hatchett-as the perpetrator of the crime. The KCDAO later expressed the view that this monumental Brady violation was not malicious but rather the result of “carelessness.” The KCDAO also found that Fengos likely failed to tell the defense that the eyewitness had admitted smoking crack on the day of the homicide, despite the witness’s false testimony that he had never smoked crack cocaine in his life.

According to the complaint, Kings County prosecutors addressed the case again in the KCDAO’s 426 Years Report, using the pseudonym “Harrison” for Hatchett and without including Fengos’s name. In addition to Fengos’s failure to provide exculpatory evidence as noted above, the report found that Fengos’s cross-examination of Hatchett was problematic in various respects. Additionally, in his questioning of a defense witness, the report noted that Fengos improperly implied that the witness had previously failed to step forward as an alibi witness for Hatchett, when in fact the individual had done so.

What rules are involved: The complaint notes that 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 Fengos’s conduct violated the following then-applicable ethical rules:

  • Rule DR 7-103(b) (from the Code of Professional Responsibility, later replaced by the Rules of Professional Conduct) required a prosecutor to make “timely disclosure. . . of the existence of evidence, unknown to the prosecutor or other government lawyer, that tends to negate the guilt of the accused, mitigate the degree of the offense or reduce the punishment.”
  • Rule DR 7-102(a)(3) prohibited attorneys from concealing or knowingly failing to disclose that which the lawyer was required to.
  • Rule DR 7-109(a) prohibited lawyers from suppressing any evidence that the lawyer or client had a legal obligation to reveal or produce.
  • Rule DR 1-102 prohibited attorneys from engaging in conduct prejudicial to the administration of justice, or engaging in any other conduct adversely reflecting on their fitness to practice law.
  • Rules EC 6-1 and DR 6-101 mandated that an attorney act with proper care and with adequate preparation.

The grievance calls on the Grievance Committee to investigate whether Fengos violated the following sections of the Code:

  • Rule DR 7-102(a)(4) prohibited attorneys from knowingly using perjured testimony or false evidence.
  • Rule DR 1-102 prohibited attorneys from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.

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

Update: As of January 1, 2024, the Grievance Committee has not informed the complainants whether there was (or will be) an investigation, what any investigation revealed, and whether discipline was (or will be) imposed as a result of this alleged misconduct. 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 its proceedings and findings in this matter transparent to the public.

Any member of the public is able to see an attorney’s record of public discipline on the Attorney Detail Report.

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 entirely on court opinions, briefs and/or other documents cited therein.