Brooklyn

Who: A group of law professors filed an ethics complaint in March 2022 against attorney Lindsay Gerdes, alleging that Gerdes engaged in misconduct while prosecuting Marc Rowley and Rafael Soto in two separate cases 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 two New York court decisions, People v. Rowley and People v. Soto. 

According to the complaint, in the Rowley case, the Appellate Division reversed the conviction due to Gerdes’s misconduct in cross-examination and closing argument. The court identified five different instances of improper conduct and concluded that the cumulative effect of Gerdes’ misconduct deprived Rowley of his right to a fair trial. 

The complaint also alleges that in the Soto case, the Supreme Court, Kings County found that Gerdes “impaired” the grand jury, leading the court to dismiss the indictment. The court found that after the grand jury deadlocked, the prosecutor had a “colloquy” with the grand jury resulting in extensive marshaling of the evidence to the point of deliberation in the process, impairing the proceeding and creating a potential for prejudice. The Kings County Supreme Court dismissed the indictment (with leave to present evidence another time), noting that this was an exceptional remedy. According to the complaint, the KCDA subsequently dismissed all charges against Soto.

What rules are involved:  The complaint notes that a prosecutor may not suggest facts that are not in evidence or otherwise act as an unsworn witness, including through cross examination, because such conduct can amount to a subtle form of testimony against the accused. The complaint further details that grand jury procedures give prosecutors substantial control over grand jury proceedings, requiring the exercise of completely impartial judgment and discretion. Consequently, the prosecutor has “the duty not only to secure indictments but also to see that justice is done.” Prosecutors are required to be fair as they are supposed to serve two functions: advocate and impartial public officer.

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 Gerdes’ conduct violated the following ethical rules:

• Rules of Professional Conduct 8.4(d) and 8.4(h) prohibit a lawyer from engaging in conduct prejudicial to the administration of justice, or engaging in any other conduct that adversely reflects on their fitness as a lawyer. 

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 the KCDAO’s 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 be transparent in 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.