In May 2021, a group of law professors filed attorney disciplinary complaints against 21 Queens County, New York, prosecutors, alleging they violated ethics rules in the course of criminal trials.

Two of the prosecutors were found to have failed to disclose exculpatory evidence in a capital murder trial that resulted in the wrongful convictions and imprisonment of three men: George Bell, Rohan Bolt and Gary Johnson.

"Just as prosecutors hold individuals accountable for crimes, so should prosecutors be held accountable for their misconduct," the professors wrote in the complaints, which were filed with grievance committees of the Appellate Division of the New York State Supreme Court. They also posted the complaints at AccountabilityNY.org—a site maintained by the nonprofit Civil Rights Corps. 

One month later, New York City's corporation counsel said in letters to the grievance committees that the professors' initiative "runs afoul of the confidentiality provisions of [state] law and the purpose of the grievance process." Grievance committee members and staff are appointed by and work with the state court system on attorney conduct complaints.

The law department sent copies of the letters to the professors who filed the complaints and also hold New York law licenses. Additionally, the agency stated that the letter to the grievance committee was itself confidential, and any disclosure by the professors without "proper court permission" would violate New York law.

"I happen to be a member of the New York bar," says Georgetown Law professor Abbe Smith, one member of the group that brought the complaints. “I found it stunning that we'd be threatened.”

The academics, along with Civil Rights Corps, subsequently sued in the U.S. District Court for the Southern District of New York. The trial court granted their summary judgment motion in 2024, finding a presumptive right of access to grievance committee dispositions of attorney complaints that survived initial screenings by counsel, and to hearings and dispositions of complaints by the appellate division. That was upheld in July by the 2nd U.S. Circuit Court of Appeals in New York City.

"Whatever may be true in other cases, there are simply no privacy interests at stake here to justify either muzzling the professors’ free speech rights or holding any investigation of the accused prosecutors in secret," the complaint states.

The other complainants were Brooklyn Law School's Cynthia Godsoe, CUNY School of Law's Steven Zeidman and Nicole Smith Futrell (who is now at Columbia Law School), Northeastern University School of Law's Daniel S. Medwed and New York Law School's Justin Murray. All are licensed in New York except Murray, who was licensed in Illinois at the time of the complaint. 

Originally the plaintiffs named five defendants—two officials from the city and three from the state, including Hector D. LaSalle, presiding justice of the Second Department of the Appellate Division of the Supreme Court of the State of New York.

Among other requests, the professors sought a declaratory judgment that they have a First Amendment right to publish their own complaints, and that the public has a First Amendment right to access proceedings resulting from those complaints.

The city's law department denied “threatening” the professors. Instead, its corporation counsel argued to U.S. District Court Judge Victor Marrero that the letters didn't accuse the academics of professional misconduct.

In 2022, Marrero granted the professors partial summary judgment on their claim that they have a constitutional right to publicize their complaints.

"The First Amendment prohibits a state from banning complainants from publishing their own attorney grievance complaints," he wrote. 

After that ruling, all defendants except LaSalle were dropped from the case—either through settlements or because the complaints against them were withdrawn. 

New York's Office of Court Administration declined to comment for this article.

In 2024, Marrero ruled that the professors have a presumptive First Amendment right to access disciplinary hearings at the appellate division regarding the Queens prosecutors, as well as to records needed to understand the hearings. He also said the professors have the right to access some final dispositions by the grievance committee—including decisions that have long been hidden from view, such as dismissals and "private" warning letters.

Marrero's ruling allows for exceptions to public access, but only if officials make on-the-record findings that restrictions "serve higher values that would be prejudiced by disclosure," and "are no more extensive than necessary to protect those higher values," and that "alternatives to restriction have been considered and would not reasonably protect those higher values."

LaSalle, backed by the New York State Bar Association, which is a voluntary bar, appealed to the 2nd Circuit. The bar association argued in an amicus brief that the state's secrecy rule protects innocent attorneys.

"There is no question that the publication of disciplinary allegations will cause severe and irreversible reputational damage to attorneys," the organization wrote. "Even an ultimately dismissed complaint can irreparably harm an attorney’s career."

In late July, the 2nd Circuit upheld Marrero's ruling. 

The federal appellate court said “experience and logic”—a phrase from a 1986 Supreme Court opinion regarding the public's right to access court formal hearings—weighed against confidentiality in this case.

The court noted that in 19th-century America, disbarment proceedings were conducted in open court. 

They also said "logic" supported the public's right to access proceedings involving criminal prosecutors, writing that the plaintiffs “tailor their argument regarding logic to the grievance complaints, noting that how state prosecutors are regulated (or not) is of great public interest.”

The Office of the New York State Attorney General, which represents LaSalle, said in an Aug. 7 letter that they are considering asking the U.S. Supreme Court to review the ruling.

It's not yet clear whether the ruling will result in more openness other cases, because the 2nd Circuit opinion is limited to the facts of the dispute. But critics are clearly worried that the ruling, if extended, will harm subjects of unproven accusations.

"The organized bar is very concerned," says Barry Temkin, a partner at Mound Cotton Wollan & Greengrass in New York City and a past co-chair of the New York County Lawyers Association's Committee on Professional Ethics. 

"I don't think the 2nd Circuit really thought out all the practical implications of this," he says, adding that the ruling, if applied in other cases, would significantly change New York's private-warning system.

New York Codes, Rules and Regulations allow a grievance committee to issue a private "letter of advisement" to attorneys who have “engaged in conduct requiring comment,” or a “written admonition” if the committee finds by a preponderance of evidence that an attorney “has engaged in professional misconduct, but that public discipline is not required to protect the public, maintain the integrity and honor of the profession, or deter the commission of similar misconduct.”

Marrero's ruling makes those dispositions regarding the prosecutors public, absent on-the-record findings in favor of  confidentiality.

Domenick Napoletano, a former president of the New York State Bar Association, says the 2nd Circuit "simply made a grievous mistake in not overturning the lower court's decision." He’s listed as counsel of record on the New York State Bar Association’s amicus brief. 

Napoletano, who sat on attorney grievance committees from 2014 to 2018, estimates that at least 80% of the grievances he saw were against solos and small-firm attorneys. A number of those complaints were brought by dissatisfied clients whose allegations reflected "Monday-morning quarterbacking" of an attorney's performance, he says.

Others counter that openness serves consumers.

"I think the public's right to know about any complaint about a lawyer trumps the lawyer's right to some sort of reputational privacy," says Michael Frisch, ethics counsel at Georgetown Law's Center of Ethics and the Legal Profession. "If I was a consumer, I'd like to know that there were 25 complaints against a lawyer, even if they were dismissed."

The 2nd Circuit opinion said New York is one of only four states that keep disciplinary proceedings confidential until formal charges are sustained. In most others, proceedings are public after there's been a probable cause finding. 

The American Bar Association's 2020 Model Rules for Lawyer Disciplinary Enforcement say that records, except work product, "shall be available to the public after a determination that probable cause exists to believe that misconduct occurred and after the filing and service of formal charges, unless the complainant or respondent obtains a protective order for specific testimony, documents or records." 

Rolando Acosta, a Pillsbury Winthrop Shaw Pittman partner who represented the New York State Bar Association in the matter—and who also previously served as a presiding justice in a state appellate court—says some of the underlying circumstances illustrate the saying “bad facts make bad law.”

The prosecutors that were found to have failed to turn over evidence in the murder trials of Bell, Johnson, and Bolt were not disciplined and remain licensed. The defendants’ convictions were vacated in March 2021 by Queens County Supreme Court Justice Joseph Zayas, who said in a written opinion that the "extensive record" showed the district attorney's office “deliberately withheld from the defense credible information of third-party guilt that was in its possession.”

By that time, the men had been incarcerated for more than 24 years. 

Smith said the appellate ruling marks “an important step towards transparency and accountability.”

"Those two things go together," she says, adding, “the New York bar's disciplinary proceedings have been historically, notoriously, untransparent.”

As of mid-August, the professors still don't know what happened with their complaints—though separate ones filed by Bell against several prosecutors involved in his case were reportedly closed without action, Gothamist reports.

State officials haven't yet said whether they plan to seek Supreme Court review of the ruling or, if the ruling stands, how they will implement it. The grievance committees could potentially create a website with information about the complaints against the prosecutors, or it could take the position that people who want to know about those particular complaints must file Freedom of Information Act requests. 

Gregory Diskant, the Patterson Belknap Webb & Tyler attorney who represented the law professors, says he assumes disciplinary officials "will be as resistant as possible" to opening the proceedings.

He adds that there could still be more litigation in the future.

"This is a long-term project," he says. "It moves very, very slowly."