Frivolous state ethics complaints involving federal practitioners–a cooperative solution

The practice of law is hard, and, at times, thankless. Life can seem to come apart at the seams when a lawyer opens the mail and finds that state ethics investigators have commenced an inquiry based upon a complaint of a former client.

The lawyer’s mind spins with all manner of concerns. Am I obligated to inform the malpractice carrier? What, if anything, should be said to members of the firm? Do I tell the family? Will the press get wind of the complaint? Should I retain counsel? If so, who should I hire? Having represented lawyers charged with ethics violations, and having prosecuted Nebraska’s attorney general in an impeachment proceeding premised on alleged ethical violations, I am very sensitive to these issues.

Several years ago our court began to see a trend. Particularly in criminal cases, ethics complaints were being filed with Nebraska’s disciplinary system and investigations would be started by Nebraska’s Counsel for Discipline. This was true despite the fact that the forum in which the alleged ethics violations occurred was a federal forum.

This matter came to a head in United States v. Zierke, 738 F.Supp.2d 977 (D. Neb. 2010) (denying a motion to vacate a conviction and sentence under 28 U.S.C. section 2255). In that case, I sentenced Mr. Zierke to 360 months in a federal correctional institution for a drug offense after Zierke solicited and then obtained the agreement of his son to kill one or more witnesses. In support of his motion attacking his federal conviction, Zierke submitted correspondence between himself and Nebraska’s Counsel on Discipline relating to an ethics complaint filed against the federal prosecutor. It was evident from that submission that the federal prosecutor had been required to respond to the ethics complaint and had done so. From my vantage point, it was clear what Zierke was doing. He was using the state disciplinary mechanism as a discovery device and to further his efforts to upend his federal conviction. This was true even though the claims against the federal prosecutor were silly. While the Zierke case involved a federal prosecutor, we also began to see other similar cases involving federal public defenders or counsel appointed under the Criminal Justice Act. Indeed, Zierke tried the same trick by filing a state ethics complaint against his court appointed defense counsel.  United States v. Zierke, No. 4:08CR3067 (D. Neb. 2011). It became evident that something should be done.

With the assistance of the Nebraska Supreme Court, particularly Chief Justice Michael Heavican, a former United States Attorney, and Nebraska’s able and experienced Counsel for Discipline, we were able to establish a referral system whereby Nebraska would refer to our court state ethics complaints involving federal matters. This referral system is set out in NEGenR 1.8(c). That cooperative approach has allowed our court, and the Nebraska Supreme Court, to deal quickly and effectively with ethics complaints against lawyers who practice in federal court. While the Nebraska authorities maintain the power to proceed with their own investigations after we have disposed of the federal side, so far as I know that power has never been exercised. We provide those authorities with our ethics decisions, and that typically resolves the matter entirely.

The federal courts have the primary disciplinary authority for lawyers who practice in federal court when the grievance involves a federal case or controversy. By allowing the federal courts to take the first crack at state generated ethics complaints involving such matters, the bench, the bar and the public are protected from those who seek to abuse the ethics process.


2 responses

  1. I’m not sure I agree with this solution, for all its good intentions and present effectivity.

    It seems to me that what happens, ethics-wise, in a Federal court should be exclusively a Federal matter and of no interest to the state, and vice versa, even to the point of, for instance, the state rejecting an ethics complaint presented to it involving a lawyer’s actions in a Federal case, rather than referring the matter to the Federal court.

    Mixing the two seems an erosion of the 10th Amendment. It’s the sort of line I think is better drawn at zero, rather than allowing a slippery slope to be started down even a little. While it’s necessary to pass a state bar in order to be a Federal lawyer, it seems to me that using this to grant the state a say, however indirectly, in the outcome of a Federal court ethics case is a nick too far down that bannister.

    Eric Hines

  2. Eric,

    You raise a very important point and one I am not prepared to discuss because of the potential that I might have to decide that issue one day. I certainly hope I don’t have to decide whether a state might discipline a lawyer for conduct exclusively related to a federal case, particularly if the federal court has declined to do so. For now, it is enough to say that you have, indeed, flagged an important issue. Thanks for your thoughtful comment.

    All the best.


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