‘Ethics’ Tactic Only Seeks to Intimidate Public Officials

New York Law Journal

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The gist of the complaint is that the attorney purportedly misrepresented statements in a recent book by Greenberg, and documents filed with the SEC by entities controlled by Greenberg, relating to whether Greenberg intends, or is likely, to become an official of a public company, or a company in the securities business—matters that are pertinent to a summary judgment motion pending before the court.

Whatever the ultimate merits of this dispute (as to which we take no position), it appears that the state's attorney was bringing to the court's attention relevant information regarding Greenberg's activities, based on his own statements and those of companies he controls. We understand these statements were contained in court papers to which the defendants had full opportunity to respond. And, of course, the court had the underlying documents before it for its own interpretation and analysis.

While we are not involved in this case and do not speak for any of the parties, we write to express our concern about the tactic of lodging ethics complaints against lawyers concerning disputed matters that are directly before the court. We think litigants should not turn garden variety court arguments about the meaning and implication of documents into an ethics dispute. This tactic not only seeks to usurp or influence the functions of the court and the judicial process, but can only have the intended effect of harassing public law enforcement officials, who should be able to pursue their public duties without intimidation. Indeed, ethical constraints require that disputed fact issues be litigated in court, not before disciplinary boards or in newspaper stories.

Thomas E. Bezanson
Daniel J. Kornstein
Victor A. Kovner

Ira Lee Sorkin
Marc Wolinsky

 

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