Grievance Against Tess Leopold

Who: A group of law professors filed an ethics complaint in March 2022 against attorney Tess Leopold, alleging that Leopold engaged in misconduct while prosecuting William Lopez 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 following summary is based on the complaint.

What: The ethics complaint, also known as a grievance, is based on a federal court decision, Lopez v. Miller. According to the complaint, in the Lopez case, the U.S. District Court reversed Lopez’s conviction, finding Lopez’s innocence claim to be both “credible” and “compelling” and described Leopold as an “overzealous and deceitful trial prosecutor” in a case that was “rotten from day one.” 

The complaint notes that the District Court found that Leopold made a false representation to the trial judge about whether the key prosecution witness was aware of an offer of a time-served sentence in exchange for their testimony at Lopez’s trial. According to the complaint, at the time of the prosecution, William Lopez was 30 years old, and was finally released from prison at the age of 53 after serving 23 years in prison. Just two years later, he died. 

What rules are involved: The ethics complaint notes that prosecutors may not mislead the court or jury and notes that multiple prohibitions on prosecutorial misconduct relate to dishonesty. Because they are representatives of the state, not lawyers for an individual, prosecutors possess a “special duty” not to mislead a judge, jury, or defense counsel. In choosing to suspend former prosecutor Claude Stuart for making misleading statements to the court, the Appellate Division noted in Matter of Stuart that such conduct “strikes at the heart of his credibility as a prosecutor and an officer of the court.” 

The complaint details that courts have made clear that prosecutors, in their role as public officers, must not only disclose exculpatory or impeaching evidence, but must also correct false or mistaken material testimony of a prosecution witness. 

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 Leopold’s conduct violated the following then-applicable ethical rules:

  • Rule DR 7-102 (from the Code of Professional Responsibility, later replaced by the Rules of Professional Conduct) prohibited attorneys from knowingly making false statements to the court or using evidence they knew to be false.
  • Rule DR 1-102 prohibited attorneys from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.
  • Rule DR 1-102 prohibited attorneys from engaging in conduct that was prejudicial to the administration of justice, or engaging in any other conduct that adversely reflected 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 a grave sanction, such as suspending Leopold’s law license or disbarment. 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.

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