Law Professors From Around The Country Rally In Support Of Accountability Efforts In New York

Released May 2022 

Open Letter In Support Of Efforts To Make Ethics Complaints Against Prosecutors More Transparent

In May 2021, a group of law professors filed 21 ethics complaints against current and former New York prosecutors. Those filings were based on court findings of misconduct. Some of that prosecutorial misconduct played a significant role in the wrongful convictions of criminal defendants who spent decades behind bars. Most of the prosecutors cited in the complaints continued to be employed as prosecutors after their misconduct, and some became high-ranking supervisors. None were publicly disciplined by the New York Grievance Committees or the courts—the institutions responsible for handling ethics complaints against lawyers. The professors posted their complaints on a website, providing the public an opportunity to monitor how the Grievance Committee responds (or fails to respond) to ethics complaints against prosecutors.

In response to those complaints, New York City’s Corporation Counsel accused the professors of misusing and abusing the ethics grievance process. According to the New York Times, Corporation Counsel “accused the professors of politicizing the process and violating the law” and threatened “further action if they continued to file grievances.” In particular, Corporation Counsel initially argued that New York law requires ethics complaints against lawyers be kept confidential, a law that the professors supposedly violated by making their complaints public. A second letter from Corporation Counsel walked back that claim, but maintained that an improper use of the grievance process had occurred.

The Grievance Committee that received the complaints—and the letter from Corporation Counsel—decided to act as though the law professors did not file the complaints, but rather that the Committee itself decided to conduct an investigation. As a result of that decision, the professors are no longer entitled to updates on any action the Committee might take, nor are they permitted to appeal any of the Committee’s decisions. In essence, the decision ensures that the professors cannot monitor how the Committee responds (or fails to respond) to ethics complaints against prosecutors.

We, the undersigned lawyers and law professors, are troubled by the attempt to keep these professors and others from publicizing their complaints against lawyers generally, and against prosecutors in particular. As courts in other jurisdictions have recognized, those who file ethics complaints have a First Amendment right to speak about their complaints. And if those who are tasked with enforcing the rules of professional responsibility do not appear to be fulfilling their obligations, then members of the legal profession have a duty to speak up. After all, ours is a self-regulating profession in which every lawyer is “an officer of the legal system and a public citizen having special responsibility for the quality of justice,” which includes the duty to “aid in securing [the] observance [of ethics rules] by other lawyers.”

When it comes to professional misconduct by prosecutors in particular, the need for transparency is heightened. In most states, including New York, prosecutors are selected through local elections. If an elected prosecutor’s office contains lawyers who are credibly accused of misconduct, that information should be made publicly available. If that information is not publicly available, then voters cannot make informed decisions at the ballot box.

It is, of course, possible that the Grievance Committee will conclude that the law professors’ complaints are unfounded. Prosecutors can commit reversible error without violating the ethics rules. But if that is what the Committee concludes, the decision should be able to withstand public scrutiny and any decision to appeal. The prosecutorial behavior at issue has already been the subject of public court proceedings, and so any reputational interests the prosecutors might have in keeping the grievance process completely confidential are minimal.

Put simply, the Committee and Corporation Counsel should not seek to prevent the law professors from publicizing the results of the Committee’s investigation or from appealing a decision with which they disagree. By seeking to prevent the public dissemination of information surrounding the grievance process, the Committee and Corporation Counsel have further contributed to the perception that the attorney discipline process fails to adequately address prosecutorial misconduct.

Titles and affiliations provided for identification purposes only

Laura I. Appleman
Van Winkle Melton Professor of Law
Willamette University College of Law
Brook K. Baker
Professor
Northeastern University School of Law
W. David Ball
Professor
Santa Clara School of Law
Susan A. Bandes
Centennial Professor of Law Emeritus
DePaul University College of Law
Rachel E. Barkow
Vice Dean and Charles Seligson Professor of Law
Faculty Director, Center on the Administration of Criminal Law
NYU School of Law
John Q. Barrett
Benjamin N. Cardozo Professor of Law
St. John’s University
Shima Baradaran Baughman
Associate Dean of Faculty Research and Development
Presidential Scholar and Professor of law
University of Utah, S.J. Quinney College of Law
Lara Bazelon
Associate Professor of Law
Phillip and Muriel C. Barnett Chair in Trial Advocacy and Director of the Criminal & Juvenile Justice and Racial Justice Clinics
University of San Francisco School of Law
Leo Beletsky
Professor of Law and Health Sciences
Director of the Health in Justice Action Lab
Northeastern University
William W. Berry III
Montague Professor of Law
University of Mississippi
Josh Bowers
F. D. G. Ribble Professor of Law
University of Virginia School of Law
Darryl K. Brown
O.M. Vicars Professor of Law
University of Virginia
Bennett Capers
Professor of Law and Director of the Center on Race, Law, and Justice
Fordham Law School
Stacy Caplow
Associate Dean of Experiential Education & Professor of Law
Brooklyn Law School
Jenny E. Carroll
Wiggins, Child, Quinn, & Pantazis Professor of Law
The University of Alabama School of Law
Nina Chernoff
Professor
CUNY School of Law
Gabriel “Jack” Chin
Edward L. Barrett Jr. Chair & Martin Luther King Jr. Professor of Law, and Director of Clinical Legal Education
University of California, Davis School of Law
Elaine M. Chiu
Professor of Law
St. John’s University School of Law
Stephen Cody
Associate Professor of Law
Suffolk Law School
Erin R. Collins
Professor of Law
University of Richmond School of Law
Angela J. Davis
Distinguished Professor of Law
American University Washington College of Law
J. Amy Dillard
Associate Professor of Law
University of Baltimore
School of Law
Joshua Dressler
Distinguished University Professor Emeritus
Professor of Law Emeritus
The Ohio State University
Michael E. Moritz College of Law
Meredith J. Duncan
Alumnae College Professor of Law
Assistant Dean of Diversity, Equity, Inclusion and Metropolitan Programs
University of Houston Law Center
Avlana Eisenberg
Gary & Sally Pajcic Professor of Law
Florida State University College of Law
Eric S. Fish
Acting Professor of Law
University of California at Davis School of Law
Thomas Frampton
Associate Professor of Law
University of Virginia School of Law
Brandon L. Garrett
L. Neil Williams, Jr. Professor of Law
Director, Wilson Center for Science and Justice
Duke University School of Law
Bennett L. Gershman
Distinguished Professor of Law
Elisabeth Haub School of Law at Pace University
Miriam Gohara
Clinical Professor of Law
Yale Law School
Russell M. Gold
Associate Professor of Law
The University of Alabama School of Law
Lissa Griffin
Professor of Law
Ian J. Yankwitt Faculty Scholar
Elisabeth Haub School of Law at Pace University
David A. Harris
Sally Ann Semenko Endowed Chair and Professor of Law
University of Pittsburgh School of Law
Susan Herman
Ruth Bader Ginsburg Professor of Law
Brooklyn Law School
Carissa Byrne Hessick
Ransdell Distinguished Professor of Law
Director, Prosecutors and Politics Project
University of North Carolina School of Law
Alexis J. Hoag
Assistant Professor of Law
Brooklyn Law School
Brooks Holland
Professor of Law
J. Donald and Va Lena Scarpelli Curran
Professor of Legal Ethics and Professionalism
Gonzaga University School of Law
Babe Howell
Professor
CUNY School of Law
Thea Johnson
Associate Professor of Law
Rutgers Law School
E. Lea Johnston
Research Foundation Professor
University of Florida Levin College of Law
Joseph E. Kennedy
Martha Brandis Professor of Law
University of North Carolina School of Law
Cecelia M. Klingele
Associate Professor of Law
University of Wisconsin Law School
Alex Kreit
Assistant Professor
Northern Kentucky University Salmon P. Chase College of Law
Christopher Lau
Director, Clinical Instructor
Wisconsin Innocence Project
University of Wisconsin Law School
Richard A. Leo
Hamill Family Professor of Law and Social Psychology
University of San Francisco School of Law
Gerry Leonard
Professor of Law and Law Alumni Scholar
Boston University School of Law
Cortney E. Lollar
James & Mary Lassiter Professor
University of Kentucky J. David Rosenberg College of Law
Michael J.Z. Mannheimer
Professor of Law
Salmon P. Chase College of Law
Northern Kentucky University
Justin Marceau
Professor and Brooks Institute Research Scholar of Animal Law and Policy
University of Denver Sturm College of Law
Daniel S. McConkie, Jr.
Associate Professor
Northern Illinois University College of Law
Kevin C. McMunigal
Krupansky and Vargo Professor of Law
Case Western Reserve University School of Law
Michael Meltsner
Matthews Distinguished University Professor of Law
Northeastern University School of Law
Eric J. Miller
Professor and Leo J. O’Brien Fellow
Co-Director, Loyola Anti-Racism Center
Loyola Law School, Loyola Marymount University
Anthony O’Rourke
Joseph W. Belluck & Laura L. Aswad Professor
Director of the Advocacy Institute
University at Buffalo School of Law, State University of New York (SUNY)
William Ortman
Associate Professor
Wayne State University Law School
Russell G. Pearce
Edward & Marilyn Bellet Chair in
Legal Ethics, Morality, and Religion
Fordham University School of Law
Eileen R. Prescott
Project Director, Accountable Prosecutor Project
Wake Forest University School of Law
Eve Brensike Primus
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
Alice Ristroph
Professor of Law
Brooklyn Law School
Ira P. Robbins
Barnard T. Welsh Scholar and Professor of Law
American University Washington COllege of Law
Anna Roberts
Professor of Law
St John’s University School of Law
Jenny Roberts
Professor of Law and Co-Director, Criminal Justice Clinic
American University Washington College of Law
Lawrence Rosenthal
Professor of Law
Chapman University, Fowler School of Law
Josephine Ross
Professor of Law
Howard University School of Law
Tanina Rostain
Professor of Law
Georgetown University Law Center
Blaine G. Saito
Assistant Professor of Law
Northeastern University School of Law
Barry Scheck
Professor of Law
Cardozo Law School
Co-director, Innocence Project
Stephen J. Schulhofer
Robert B. McCay Professor of Law
NYU School of Law
Jocelyn Simonson
Professor of Law
Brooklyn Law School
Ji Seon Song
Assistant Professor of Law
University of California, Irvine School of Law
Vincent M. Southerland
Assistant Professor of Clinical Law
Director, Criminal Defense and Reentry Clinic
Co-Faculty Director, Center on Race, Inequality, and the Law
New York University School of Law
Daniel J. Steinbock
Dean Emeritus
Harold A. Anderson Professor Law and Values Emeritus
The University of Toledo College of Law
Seth W. Stoughton
Professor of Law
University of South Carolina School of Law
Ronald S. Sullivan Jr.
Jesse Climenko Clinical Professor of Law
Harvard Law School
George Thomas
Board of Governors Professor of Law
Rutgers University
Katie Tinto
Clinical Professor of Law
Director, Criminal Justice Clinic
UC Irvine School of Law
Ronald Tyler
Professor of Law
Director, Criminal Defense Clinic
Stanford Law School
Sandra Guerra Thompson
Newell H. Blakely Chair
University of Houston Law Center
Ari Ezra Waldman, JD, PhD
Professor of Law and Computer Science
Faculty Director, Center for Law, Information, and Creativity
Northeastern University School of Law & Khoury College of Computer Sciences
Deborah M. Weissman
Reef C. Ivey II Distinguished Professor of Law
University of North Carolina School of Law
W. Bradley Wendel
Edwin H. Woodruff Professor of Law
Cornell Law School
Ronald F. Wright
Needham Y. Gulley Professor of Criminal Law
Associate Dean for Research and Academic Programs
Wake Forest University School of Law
Ellen Yaroshefsky
Howard Lichtenstein Professor of Legal Ethics
Director-Monroe Freedman Institute for the Study of Legal Ethics
Maurice A. Deane School of Law, Hofstra University
Corey Rayburn Yung
William R. Scott Research Professor
University of Kansas School of Law