Ethics Programs Protect Good Faith Complainants

Accusing someone of a conflict of interest can lead to trouble,
especially if the person you accuse is a litigious lawyer and you do it outside of an ethics proceeding. This is what
one can read from a $5 million suit filed by a former town attorney
against the town of <a>Victor, NY</a> 
(pop. 10,000) and a member of the town's planning board.<br>
<br>

According to <a>an
article yesterday in the <i>Daily Messenger</i></a>, the former town
attorney's cause of action was a false accusation of an "illegal
conflict of interest." Conflicts of interest are, however, not illegal
under Victor's <a>code
of ethics</a> (click Chapter 25), and it does not appear that the
town's board of ethics made a decision in this case, since it does not
appear to have been included in the suit.<br>
<br>
But what if it had? Would the former town attorney have also sued the board of ethics for questioning his integrity (that is, slander or libel), as well as causing him severe pain, emotional distress, and loss of employment?<br>
<br>
The purported conflict involves a relationship with another lawyer,
who represented a company in a suit against the town. It doesn't help that the
town attorney's wife, according to a commenter to the article, is chair
of a party town committee, and that it's an election year. Or that,
earlier this year, the same attorney sued another town, whose planning
board he represented.<br>
<br>
But putting these details aside, how is a complainant or ethics
commission to deal with the risk of being sued for filing a formal
complaint, acting on a formal complaint, and finding against a
respondent, especially a lawyer?<br>
<br>
Members of an ethics commission should know that their acts are usually
covered by their government's insurance policy and, even if they are
not, the government will represent them, unless they have done
something especially egregious, such as intentionally ignoring
procedures and laws. They might be sued, although the likelihood is
very small, but they should not be responsible for legal fees or other
defense costs, or for damages.<br>
<br>
As for complainants, they are protected in several ways. In the
great majority of jurisdictions, complaints are not made public until
probable cause is found. All a complainant need do is hold his or her tongue until a probable cause determination is made. If probable cause is found, it would be very
hard for the respondent to accuse the complainant of having made false
accusations.<br>
<br>
Commonly, only a respondent is allowed to make a complaint
public before this point, and any respondent who chooses to have
accusations made public has no cause of action against the complainant
for publishing (that is, making public) the accusations.<br>
<br>
Thus, confidentiality early in the ethics process protects not only
innocent respondents, but also mum complainants who make mistakes, for
whatever reason. Their accusations, which might lead to a libel suit
were the accusations made outside the ethics process, will only come to
light if they are perceived by an independent group of people to be
probable. Therefore, libel -- which is based on intended malice -- is not something
the accused can sue for. The other causes of action, such as emotional distress,
are secondary, that is, they can only be sued for if
there is a primary cause, such as libel.<br>
<br>
This is yet another reason why it is important to have clear and
effective ethics programs instead of public accusations of conflicts of
interest. It is better for everyone who acts in good faith to follow
rules and procedures and enjoy the protections they provide.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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