To add your name to this letter, please contact Professor Carissa Byrne Hessick chessick@email.unc.edu
Law Professors from Around the Country Rally in Support of Accountability Efforts in New York
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 |