You just received a “ten day” letter from the NJ Bar Ethics Committee. Someone has filed a complaint against you and you are now a defendant in an ethics matter. You have been given ten days to respond in writing and provide certain records and documents by a person identifying themselves as a Lawyer Ethics Committee Investigator. Perhaps the aggrieved party was a client or a former client. Maybe he was an adversary. Hopefully, he wasn’t a judge. He is instructed to cooperate with the investigation.

At this point, you should review your E&O coverage, specifically the notice requirements and the terms of coverage. As necessary, notify your E&O carrier of the pending investigation. Not only can they provide you with an attorney in an appropriate case, but their failure to advise may result in the loss of coverage in a potential negligence lawsuit in the future. Insurance or no insurance, you don’t have much time to answer Ethics.

Intuition says that you should exercise your right to remain silent; practice tells you to try to anticipate the investigation. Should you cooperate with your prosecutors? Suppose you believe your documents may result in criminal charges being filed against you. What happens if the investigator asks you questions the truthful answer to which would be an admission of crime? Can they make you testify? What can they do if you don’t? What about the Fifth Amendment?

There are some facts you should know. The Office of Attorney Ethics (OAE), under the state Supreme Court, is responsible for the discipline of lawyers in New Jersey. Investigate all complaints against all attorneys. If OAE decides that your case requires immediate attention, or if you are also a defendant in a criminal proceeding, the ethics case may be handled directly by OAE in Trenton. In such a case, the Investigator who contacted you is likely a paid professional. Sometimes the case arises “automatically” when an attorney trust account check bounces. Those cases are also generally handled out of Trenton. It is not usually clear from the first letter or phone call.

However, most complaints are investigated by District Ethics Committees (DECs), whose investigators are volunteer attorneys in districts throughout the state. After its investigation, DEC will determine if discipline may be required. If so, a formal Complaint will be filed. Other times, the complaint is dismissed. Sometimes, in minor cases, you may be offered a diversion, a conditional, non-disciplinary resolution of the case. In all cases, you are ultimately entitled to a full evidentiary hearing on the charges.

It is important for you to know that OAE has the power to summarily suspend your license simply for your refusal to respond to the ten day letter. You will generally be given a few extra days to comply if you need them, but your further or continued failure to cooperate with the investigation (or even the mere appearance of such failure) may result in further action against you, including, in appropriate cases, summary disqualification. While the Ethics Committee can’t put you in jail, it can do something that criminal courts can’t: it can penalize you for “pleading fifth.” Unlike the trier of fact in a criminal case, an Ethics Committee Hearing Panel and the rest of OAE, and even the Supreme Court, can draw a negative inference from your lack of cooperation or your failure to appear or produce evidence or its refusal. to declare.

This is because there is no constitutional or even legal right to practice law; there is only one license, similar to a driver’s license. When a trade or profession must be regulated by the state, and practitioners must be licensed, the state may impose conditions and restrictions on that license. Defended offenders do not get a jury, and the standard of proof is “clear and convincing,” not the Constitution’s “beyond reasonable doubt” standard.

Of course, if your ethics case also involves (or may involve) criminal charges against you or your client or someone at your company, immediately consult with an attorney with appropriate experience. The issues are complex, the stakes are high, and there is no standard approach.

Ethics decisions by New Jersey lawyers invariably give credit to lawyers who fully cooperate with investigations against them. They generally discipline lawyers who don’t. While you should always have an experienced lawyer with you whenever you are the focus of an ethics complaint, if you wish to continue practicing law, cooperation with Ethics is a no-brainer.