Nassau

Who: A group of law professors filed an ethics complaint in March 2022 against attorney Michael Bushwack, alleging that Bushwack engaged in misconduct while prosecuting Ryan Draper on behalf of the Nassau County District Attorney’s Office. The complaint was filed with the Grievance Committee for the Tenth Judicial District, the body that handles ethics complaints against attorneys in Nassau County. The complaint was later transferred to the Grievance Committee for the First Judicial Department. The following summary is based on the complaint.

What: The ethics complaint, also known as a grievance, is based on a New York court decision, People v. Draper. According to the complaint, in the Draper case, the Nassau County Court found that prosecutor Bushwack “usurped the power” of the grand jury, prejudicing Mr. Draper and justifying the dismissal of the three serious charges.

According to the complaint, after the grand jury made an initial decision to dismiss certain charges in Draper’s case, Bushwack provided an unsolicited re-charge of the grand jury on these three dismissed charges, resulting in a vote to indict on the previously-dismissed charges. Per the complaint, the court ruled that on the basis of the record before it, Bushwack’s actions constituted “prosecutorial misconduct” that “undermined the integrity” of the grand jury. The court dismissed those charges.

What rules are involved: The ethics complaint notes that grand juries are “one-sided” proceedings where defense attorneys are not normally allowed to be present to make objections or arguments (unless the accused is the one testifying). 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 Bushwack’s conduct violated the following ethical rule:

• Rule of Professional Conduct 8.4, prohibiting attorneys from engaging in conduct prejudicial to the administration of justice or reflecting adversely on their fitness to practice law. 

What can be done: The law professors’ complaint calls for the Grievance Committee to investigate and issue public discipline, including suspending Bushwack’s law license. It also calls for a broader investigation into other cases prosecuted by the same prosecutor, and to determine whether the Nassau County District Attorney’s Office’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 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 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 entirely on court opinions, briefs and/or other documents cited therein.