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 Victor, NY  (pop. 10,000) and a member of the town's planning board.

According to an article yesterday in the Daily Messenger, 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 code of ethics (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.

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?

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.

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?

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.

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.

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.

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.

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.

Robert Wechsler
Director of Research-Retired, City Ethics

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