Grievance Against Kenneth M. Appelbaum

Who: A group of law professors filed an ethics complaint in May 2021 against attorney Kenneth Appelbaum, alleging Appelbaum engaged in misconduct while prosecuting cases on behalf of the Queens District Attorney’s Office (QDAO). The complaint was filed with the Grievance Committee for the Second, Eleventh and Thirteenth Judicial Districts, the body that handles ethics complaints against attorneys in Queens. The following summary is based on the complaint.

What: The ethics complaint, also known as a grievance, is based on two cases, People v. Moustakis and People v. Gallagher. According to the complaint, in Moustakis, the Queens Supreme Court vacated the convictions because it found that Appelbaum violated the Rosario rule by knowingly withholding evidence about a key witness. The Second Department Appellate Division affirmed this decision on appeal. According to the complaint, in People v. Gallagher, the Queens Supreme Court dismissed a grand jury’s indictment after finding that Appelbaum’s improper questioning of the defendant prejudiced the proceeding.

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 Appelbaum’s conduct violated the following ethical rules:

  • Rule DR 7-102(a)(3) (from the Code of Professional Responsibility, later replaced by the Rules of Professional Conduct) prohibited prosecutors from “[c]onceal[ing] or knowingly fail[ing] to disclose that which [they were] required by law to reveal.”
  • Rule DR 7-103(b) required prosecutors to “make timely disclosure…of the existence of evidence, known to [him] 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 7-109(a) instructed attorneys not to “suppress any evidence [he had] a legal obligation to reveal or produce.”
  • Rule DR 7-102(a)(5) instructed attorneys not to engage in “conduct that is prejudicial to the administration of justice.”
  • Rule DR 1-102(a)(7) required that attorneys abstain from “any other conduct that adversely reflects on [their] fitness to practice law.”

What can be done about it: The law professors’ complaint calls for the Grievance Committee to disbar Appelbaum from the practice of law. It also calls for a broader investigation into other cases prosecuted by the same prosecutor, and to determine whether QDAO’s supervising and managing attorneys complied with their duties under Rule 5.1 of the New York Rules 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.