When The Ethics Reporter wrote last month about the dismissal of the ethics complaint against Roberta Kaplan, the arithmetic did the arguing: a 15-page complaint, researched over months by the National Legal and Policy Center, closed by New York’s Attorney Grievance Committee in 32 days, at the screening stage, with what the complainant described as two sentences of substantive explanation. No investigation. No committee vote. A single letter over the signature of Jorge Dopico, chief attorney of the First Department’s grievance committee.
NLPC has now formally refused to accept that as the last word. On September 1, the organization’s counsel, Paul Kamenar, filed a request for reconsideration with the committee — addressed to its chairs, Tina M. Wells and Milton L. Williams Jr., in the matter the committee has docketed as No. 2026.2605. It is an appeal in substance if not in nomenclature, since New York’s disciplinary rules provide complainants no appeal as of right. The filing, which NLPC has published along with a supporting expert report, argues that the dismissal rested on a premise that was simply wrong: that a court had already handled the matter.
The Mistake at the Center
The underlying complaint concerns the funding of E. Jean Carroll’s litigation against Donald Trump. At her October 2022 deposition, Carroll was asked whether anyone else was paying for her lawsuits. The transcript, quoted in NLPC’s filing, records the exchange:
Q: Are you presently paying your counsel’s fees?
A: This is a contingency case.
Q: So you’re not paying expenses or anything out of pocket to date; is that correct?
A: I’m not sure about expenses. I have to look that up.
Q: Is anyone else paying your legal fees, Ms. Carroll?
A: No.
In fact, the litigation had received funding — NLPC’s filing puts the figure at up to $7 million — from a nonprofit bankrolled by billionaire Reid Hoffman, a fact Kaplan disclosed to opposing counsel and the court in the spring of 2023, on what NLPC characterizes as the eve of trial. The complaint alleges that Kaplan knew the deposition answer was false when it was given and waited nearly six months to correct the record. As the original complaint put it: “At that moment, Kaplan knew that answer was false but waited almost six months later until the eve of the trial to correct the record by informing opposing counsel and the court that Hoffman had funded the lawsuits.”
Dopico’s August 3 dismissal letter, as quoted in NLPC’s filing, reasoned that the complainant had “indicated that this matter was brought before and addressed by the court handling this lawsuit,” and that the committee “is not the proper forum for re-litigating issues that were previously, or should have been, decided by the court of first review.”
Kamenar’s response is that the committee dismissed a complaint it misread. “In dismissing our complaint out of hand, Mr. Dopico was profoundly mistaken,” the reconsideration request argues. The “matter” the trial court addressed, Kamenar writes, was whether Carroll lied at her deposition — which Judge Lewis A. Kaplan handled in April 2023 by permitting a limited second deposition. The filing quotes the court’s April 13, 2023 order (ECF 110) authorizing a renewed deposition “limited to the subject of Ms. Carroll’s knowledge of the financing assistance as of the date of her deposition and as of the present.” What the court never addressed, because it was never asked to, was the professional-conduct question: whether Carroll’s lawyer violated her own ethical obligations by sitting on knowledge of false testimony for months. “Notably,” the filing adds, “Mr. Dopico did not claim, nor could he, that our allegations, if true, do not constitute claims of professional misconduct.”
That distinction — between a court managing a discovery problem and a regulator assessing a lawyer’s ethics — is not a technicality. Courts routinely remedy litigation misconduct without adjudicating anyone’s license; that is what disciplinary committees exist for. If a judicial workaround extinguishes disciplinary jurisdiction, then any lawyer whose conduct a court has patched around becomes, by that fact alone, immune from professional review.
The Rules the Complaint Invokes
The reconsideration request organizes NLPC’s theory under four headings, each pinned to specific text in New York’s Rules of Professional Conduct. The first is the remedial-measures rule, Rule 3.3(a)(3), which the filing quotes: if a lawyer’s client “has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures.” New York guidance leaves little room to argue that a deposition is exempt; the filing cites the New York County Lawyers’ Association’s Formal Opinion 741, which reasoned that “the taking of a deposition is no different from calling a witness at a trial,” since deposition testimony “is offered under oath and penalty of perjury” and is admissible at trial. The question a real investigation would have to answer is not whether the duty existed but what “reasonable” timing means: whether a correction delivered months later, before trial, discharges a duty that the rule’s commentary frames in terms of prompt remediation.
Alongside the remedial-measures rule, the filing stacks three more provisions whose text it quotes in full. Rule 3.4(a): a lawyer shall not “suppress any evidence that the lawyer or the client has a legal obligation to reveal or produce” or “conceal or knowingly fail to disclose that which the lawyer is required by law to reveal.” And the twin catch-alls of Rule 8.4: a lawyer shall not “engage in conduct involving dishonesty, fraud, deceit or misrepresentation,” nor conduct “prejudicial to the administration of justice.” None of these rules requires that the underlying case have been lost, or even affected; they regulate the lawyer’s conduct, not the verdict. That is why the committee’s stated rationale — the court already handled it — strikes ethics practitioners as a category error. The court handled the case. Nobody has yet handled the rules.
The second heading concerns candor about the delay itself. NLPC alleges that the explanations offered for the timing were “shifting and contradictory” — first, that Carroll had a late realization about the funding; later, that her lawyer had made “an appropriate inquiry at the time” of the deposition and satisfied herself the testimony was truthful as of then. The filing presses the tension: an inquiry at the time would have surfaced the funding then, not six months later. Whether that tension has an innocent resolution is, again, precisely the kind of question investigations exist to answer; the committee closed the file without asking it.
The third heading moves from candor to consent. Rule 1.8(f), quoted in the filing, forbids a lawyer to “accept compensation for representing a client, or anything of value related to the lawyer’s representation of the client, from one other than the client unless... the client gives informed consent.” NLPC argues there is reason to doubt Carroll was ever fully advised about the Hoffman-linked funding — and layers on a pointed irony: Hoffman, the filing notes, had publicly acknowledged efforts to rehabilitate Jeffrey Epstein’s reputation and had visited his island, associations a client suing over sexual assault might reasonably have wanted disclosed before accepting his money. The fourth heading questions the fee structure — whether a maximum contingency fee stacked atop outside hourly funding, staffed by four lawyers at a single deposition, produced an “excessive fee” under Rule 1.5(a). The filing supports the stacking analysis with the leading New York treatise: Roy Simon’s annotated rules, which note that hybrid arrangements are permissible “but only if... the total fee is reasonable” and, where court rules cap contingency recoveries, does not exceed the one-third limit. These latter theories are the complaint’s weakest limbs — they rest on inference rather than documents — but bar investigations exist precisely to distinguish inference from evidence, and none was conducted.
The Expert Report
The reconsideration request arrives with an exhibit the original complaint lacked: an expert report from Jack Marshall, the legal-ethics specialist behind the consultancy ProEthics. Marshall’s conclusion, as set out in the signed report NLPC published, does not hedge: “The deliberate failure of Attorney Roberta Kaplan to follow the requirements of the New York State Bar’s Rules of Professional Conduct was serious and substantial. It caused significant harm to her client’s adversary and the administration of justice in the case at issue, as any distortion of the relevant facts in any matter will.” The record, he concludes, “demonstrates Ms. Kaplan’s lack of honesty, trustworthiness and competence.”
An expert report is advocacy’s formal wear — it is NLPC’s retained opinion, not a finding — but its presence changes the posture of the file. A screening-stage dismissal of a bare complaint is one thing; a screening-stage dismissal of a complaint supported by a signed opinion from a recognized ethics practitioner, without any investigation, is harder to describe as a judgment on the merits. Kamenar has been blunter still in the press: if the committee does not reverse the summary dismissal, he told the Daily Signal in early September, “it smacks of a coverup.”
The filing also turns the committee’s own literature against it. The AGC’s public filing instructions promise that the committee “safeguards the reputation of the legal profession by enforcing high standards of conduct, while at the same time ensuring that complaints are thoroughly investigated.” Its most recent annual report describes the ordinary mechanics: a paralegal sends the complaint to the respondent for an answer; the answer may go to the complainant for reply. None of that happened here, the filing asserts — the complaint was never even transmitted to Kaplan for a response. The relief requested is correspondingly modest: vacate the dismissal, and “at least begin” the initial investigation, “starting with transmitting our complaint and this request for reconsideration to Ms. Kaplan for her response.”
What Fairness Requires Saying
The case against the dismissal should not be mistaken for a case against Kaplan, and the record on her side deserves equal daylight. Kaplan has never been found to have violated any rule of professional conduct, in this matter or any other. The funding disclosure, however delayed, was ultimately made by her — voluntarily, before trial, in a case she went on to win twice. The verdicts she secured for Carroll have withstood review: a jury awarded Carroll $5 million in the first-tried case and $83.3 million in the defamation case; the Supreme Court declined on June 29 to disturb the $5 million judgment, and the larger award remains on appeal. Judge Kaplan, who saw the funding dispute unfold in real time, imposed no sanction on any lawyer and permitted the case to proceed to a trial the defense lost on the merits. It is entirely possible that a full investigation would conclude her conduct fell within the bounds of zealous, if aggressive, advocacy — that the timing of the correction reflected judgment calls the rules leave to lawyers, and that the client consented to everything requiring consent. Kaplan has not publicly responded to the reconsideration filing.
But “a full investigation might vindicate her” is an argument for conducting one, not against it. The screening dismissal denied Kaplan the exoneration an investigation could have delivered, exactly as it denied NLPC the scrutiny it sought.
The Stakes Beyond One Lawyer
Part of what gives this procedural skirmish its charge is the asymmetry it appears to illustrate. This publication has reported for months on the other end of the grievance system’s throughput: solo practitioners and small-firm lawyers disbarred for failing to answer a committee’s letters, complainants of modest means whose documented allegations died at screening. Against that backdrop, a 32-day screening dismissal of a heavily documented complaint against one of the most celebrated litigators in the country — on reasoning the complainant says misstates its own contents — reads less like an isolated judgment call than a data point in a pattern the system’s critics have long alleged: that the machinery’s rigor varies inversely with the prominence of its target. One case proves no such pattern, and fairness requires saying so. But the committee’s handling of the reconsideration request will be read, by partisans and neutrals alike, as evidence in that larger argument — which is one more reason a reasoned, transparent disposition serves the committee’s own interest. Only last year, in Civil Rights Corps v. LaSalle, a federal judge held that the public has a presumptive First Amendment right to know what New York’s grievance apparatus did with complaints against prosecutors that vanished into the same confidential machinery. The system’s opacity is now itself a litigated subject.
There is also the funding question, which outlives this complaint. Third-party litigation finance has grown faster than the disclosure rules governing it, and the Carroll case — where funding by a politically prominent billionaire’s vehicle surfaced only after a false deposition answer and a months-long silence — has become Exhibit A in a national debate over whether such arrangements must be disclosed as a matter of course. The chief judge of the federal district court in Delaware has since 2022 required litigants to disclose third-party funding by standing order; Wisconsin wrote funding-agreement disclosure into its discovery statute in 2018; and the federal judiciary’s civil rules committee has taken up whether a national disclosure rule should follow. However the grievance committee rules, the underlying problem — juries and judges evaluating cases without knowing who is financing them — is not going anywhere.
The System Reviews Itself, Again
The reconsideration request now goes to the same office that issued the dismissal — readers of this publication’s reporting on New York’s grievance apparatus will recognize the geometry. There is no deadline for a response, no obligation to explain a denial, and no further review if the answer is no. Whatever one thinks of the merits, the procedural picture is stark: a complaint against one of the most prominent lawyers in America was resolved in a month, at a clerk’s desk, on reasoning the complainant contends is demonstrably mistaken, and the only recourse is to ask the desk to reconsider.
What granting the request would actually set in motion is, by the system’s own rules, unremarkable. Under the uniform disciplinary rules in 22 NYCRR Part 1240, an investigated complaint can end in dismissal, in a private Letter of Advisement, in an admonition, or — only with the Appellate Division’s leave — in formal public charges. The overwhelming majority of investigations end in the private tiers. Transmitting the complaint to Kaplan for a response, the specific first step NLPC requests, is the same step the committee’s paralegals take in routine matters against unknown practitioners every week. The question the reconsideration request poses, stripped of its politics, is whether that routine step applies to everyone.
The committee can moot every criticism in this story by doing something unremarkable: opening a file, asking questions, and writing down what it finds. If the answers clear Kaplan, the system will have produced something it currently cannot offer her or anyone else — a conclusion that means something. It is a measure of where the discipline system stands that this modest outcome would count as news.