Brooklyn

Who: A group of law professors filed an ethics complaint in March 2022 against attorney Michael Palkhiwala, alleging that Palkhiwala engaged in misconduct while prosecuting Tyrone Anderson 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 a New York court decision, People v. Anderson. According to the complaint, in the Anderson case, the Appellate Division found that Palkhiwala made inflammatory remarks, denigrated the defense, and improperly commented on the accused’s pre-arrest silence. 

The complaint alleges that Palkhiwala prosecuted Anderson for burglary and related charges, and Anderson was convicted at trial in 2011. Though the Appellate Division reversed the conviction on a different ground, the court addressed Palkhiwala’s misconduct and noted its disapproval, finding that “it was improper for the prosecutor to persist in making purposefully inflammatory remarks designed to appeal to the jury’s sympathy, in disregard of the Supreme Court’s repeated admonitions.” The court noted that Palkhiwala improperly referenced Anderson’s pre-arrest silence, though New York state law does not permit prosecutors to use a defendant’s pretrial silence in their direct case, or whether or not the silence occurred pre- or post-arrest. 

What rules are involved: The ethics complaint notes that as far back as 1899, the New York Court of Appeals cautioned prosecutors against appealing to “prejudice” or seeking conviction “through the aid of passion, sympathy or resentment.” The Court of Appeals has explained that a prosecutor must not vouch for the strength of her own case because of the “possible danger that the jury, impressed by the prestige of the office of the District Attorney, will accord great weight to the beliefs and opinions of the prosecutor.” 

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 Palkhiwala’s conduct violated the following ethical rules:

• Rules 8.4(d) and 8.4(h) mandate that a lawyer shall not engage in conduct that is prejudicial to the administration of justice or engage in any other conduct that adversely reflects on the lawyer’s fitness as a lawyer. 

What can be done about it: The law professors’ complaint calls for the Grievance Committee to investigate and issue public discipline, including suspending Palkhiwala’s law license. It also calls for a broader investigation into other cases prosecuted by the same prosecutor, and to determine whether 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.