One of the hallmarks of a fair and properly functioning disciplinary system is even-handed treatment of the principal participants in that system, to wit, complainants and respondent lawyers. Unfortunately, because of its disjointed grievance structure, whereby each of the four appellate departments separately and non-uniformly oversees all aspects of attorney discipline in its geographic jurisdiction, New York does not currently meet that basic standard.
The reasons for disparate treatment are complex, relating to geography as well as to the constitutional structure and historical development of our courts. But whatever the origins and causes, the net result is a regulatory system in which the availability of important procedural rights, and even substantive outcomes, may critically depend on the location of a lawyer’s principal office.
Consider the following examples, which are by no means exhaustive:
The rules of the Second, Third and Fourth departments contain similar provisions with respect to “diversion” or “monitoring” programs.1 In brief, if during the course of an investigation or a formal disciplinary proceeding it appears that the attorney is or may be suffering from alcoholism or other substance abuse or dependency, the court, after consideration of specified factors, may stay the investigation or proceeding and direct the attorney to complete a monitoring program sponsored by a lawyers’ assistance program approved by the court.
Upon submission of written proof of successful completion of the monitoring program, the court may direct the discontinuance or resumption of the investigation or proceeding, or take other appropriate action. The First Department’s disciplinary scheme, in stark contrast to the other departments, does not provide for any such diversion or monitoring program.
If charges are filed against an attorney by a grievance or disciplinary committee, the matter is generally referred to a referee, who conducts a hearing. The referee then issues a report, making findings of fact and conclusions of law. The parties can then request the Appellate Division to affirm, disaffirm or modify the referee’s report. But there is a major variation in this process among the four judicial departments. In the First Department only, a Hearing Panel composed of lawyers and laypersons reviews and is empowered to modify the referee’s report before it goes to the court.2 Furthermore, the parties have the opportunity to submit briefs to the Hearing Panel on the referee’s report and recommendation, and to present oral argument.3
Advocating Before the Court
Unlike the other departments, the rules of the Fourth Department provide that an attorney subject to formal disciplinary charges shall personally appear before the Appellate Division on the return date of the matter,4 although when a respondent in the answer denies a material allegation of the petition, thereby raising an issue of fact, the Appellate Division may dispense with the respondent’s appearance and refer the matter to a referee to hear and report without recommendation.5 However, when no issue of fact is raised, or after completion of the hearing and report, the Appellate Division fixes a time at which the attorney may be heard in mitigation or otherwise.6
In the Third Department, upon determining that a disciplinary proceeding should be instituted, the Committee on Professional Standards files a petition of charges, with service upon the attorney.7 According to the Third Department’s rules, if no factual issue is raised, the court may, upon application of either party, fix a time at which the attorney may be heard in mitigation or otherwise, or the court may refer the matter for such purpose. Id. Thus, according to 22 NYCRR 806.5, an attorney may have the opportunity to be heard by the court.
In contrast, the First and Second departments make their determinations as to discipline solely on the basis of the referee’s report, the Hearing Panel’s determination (in the First Department) and the submissions of the parties. There is no opportunity to appear before the court.
Being Heard on Sanction
As noted above, in the Fourth Department, the designated referee hears and reports without a recommendation as to sanction. Although the parties present final submissions to the referee following the hearing, including proposed findings of fact,8 there is no meaningful opportunity to be heard on sanctionpresenting arguments based on relevant case law and recognized mitigating circumstancesbecause the referee’s report, pursuant to the Fourth Department’s rules, cannot address the issue.9The Second Department employs a similar procedure, though it does not appear to be codified.
By clear contrast, in the First Department, referees and Hearing Panels are empowered to prepare recommendations as to sanction,10 providing advocates with a valuable opportunity to be heard on disposition resulting, in the author’s view, in a more consistent and accessible jurisprudence.
It is in the arena of “private” i.e., non-publicdiscipline, and quasi-disciplinary letters of caution, education or warning, where the grievance and disciplinary committees may differ most.
Private discipline is imposed in the First Department in one of two ways: either by a “Letter of Admonition” issued by the Departmental Disciplinary Committee after an investigation, but without a hearing; or by a formal “Reprimand” issued by the Appellate Division upon referral by the committee after a hearing, or by a Hearing Panel chairperson without referral.11 Unlike the other Appellate Divisions, the First Department no longer issues Letters of Caution, which do not in themselves constitute professional discipline but nevertheless can be cited as aggravating evidence in a subsequent disciplinary hearing if misconduct is found.12
The Second Department uses Admonitions and Reprimands in virtually the same manner as the First Department, except that Admonitions require a majority vote of the full Grievance Committee (rather than simple approval by one or more designated members of the committee) before they can be used.13 Moreover, unlike the First Department, Second Department grievance committees are authorized to issue Letters of Caution “when it is believed that the attorney acted in a manner which, while not constituting clear professional misconduct, involved behavior requiring comment”14 and Letters of Caution, like Admonitions and Reprimands, can be “considered in determining the extent of discipline to be imposed in the event other charges of misconduct are brought against the attorney subsequently.”15
The Third Department has a wholly different scheme, both in terms of the number of available disciplinary and quasi-disciplinary private “sanctions” and their substantive standards. First, in addition to Admonitionswhich can be issued in writing or, unlike the other departments, orally16 and Letters of Caution, the Committee on Professional Standards is also empowered to issue Letters of Education. Letters of Education are sent “if the committee determines that the actions of the attorney warrant comment.”17 This is similar to the standard governing Letters of Caution in the Second Department.
The Fourth Department is similar to the Second Department when it comes to private discipline and quasi-disciplinary measures. Thus, Fourth Department grievance committees issue Letters of Admonition18 for proven misconduct that does not warrant formal charges, and Letters of Caution where an attorney engages in “inappropriate behavior that does not constitute professional misconduct.”19
Significantly different from all other departments, however, the Fourth Department grants attorneys the right to be heard before an Admonition is issued. Specifically, where the Grievance Committee staff concludes that an Admonition is justified, it will forward a copy of a report “summarizing the matter” and containing its recommendation to the attorney, who can then appear before the Grievance Committee before it decides whether to adopt the recommendation. A majority vote of committee members present is necessary to sustain a recommendation by staff that an Admonition be issued.20
There are also significant distinctions with respect to actual discipline imposed by the different appellate departments. A particularly stark example concerns an attorney’s intentional conversion of client or third-party funds, arguably the most nefarious of misdeeds prosecuted by disciplinary authorities. The First Department takes a hard line on this kind of misconduct, reaffirming recently that it “consistently adhere[s] to the position that, absent extremely unusual mitigating circumstances, an attorney who has intentionally converted client funds is presumptively unfit to practice law and should be disbarred.”21 Thus, a First Department attorney with a 30-year unblemished career was disbarred notwithstanding that he fully cooperated with the Disciplinary Committee and repaid all converted funds before his client even filed a complaint.22
By contrast, in similar or more egregious circumstances, the Second Department will often suspend rather than disbar an attorney, even where the attorney is guilty of other misconduct in addition to conversion.23 Still more lenient is the Fourth Department, where short suspensions lasting just a few months are not uncommon in conversion cases.24 Even more divergent is the Third Department, which often orders that attorneys in conversion cases be suspended, but then, unlike any other department, might additionally direct that the attorney’s suspension be stayed upon conditions, such as the completion of extra continuing legal education or monitoring by a certified public accountant.25
Another clear example of disparate outcomes involves the treatment of criminal convictions based upon an attorney’s failure to file tax returns (a surprisingly common occurrence) in one or more years. In the First Department, public censure has consistently been deemed appropriate in such cases when the behavior is counterbalanced by substantial mitigating circumstances.26
The Second Department also regularly imposes a public censure where mitigating circumstances are presented.27 There are exceptions, however.28 But cases like Mulholland, supra, note 28, are not easily explicable from a simple reading of the court’s decision, because the Second Department does not generally cite to case law in any of its “failure to file” decisions, and the court’s rendition of the facts and the totality of the circumstances, including the mitigating factors, is extremely lean.
The “failure to file” decisions in the Fourth Department are even more spare. In a recent decision, Matter of Coletti, 887 N.Y.S.2d 906 (4th Dept. 2009), the court imposed a public censure despite the attorney’s failure to file for four years. But in earlier decisions, which are not readily distinguishable because of the summary nature of the opinions, the court imposed six-month suspensions on relatively similar charges.29
In contrast to the First and Second departments, the Third Department has historically imposed at least short suspensions, rather than a public censure, in such cases, even where there were compelling mitigating circumstances.30
Assuming one agrees that non-uniform disciplinary procedures, and the non-uniform imposition of sanctions despite similarly situated respondent lawyers, reflects adversely on the administration of justice, what, if anything, should be done to fix this problem? There may be only one practical solution. While each department is entitled to promulgate its own rules of disciplinary procedures,31 and local culture may dictate substantive outcomes regardless of attempts to standardize, there is no legal reason why the Administrative Board of the Courts, or the Presiding Justices of the four Appellate Divisions acting jointly, could not at least agree on a uniform set of rules. Indeed, the New York State Bar Association has sporadically argued for adoption of such uniform procedures for many years. The question is simply one of political will and a recognition that no one department has an exclusive patent on wisdom or the “right” way to regulate our profession.
HAL R. LIEBERMAN, a partner at Emery Celli Brinckerhoff & Abady LLP, is a former Chief Counsel to the Departmental Disciplinary Committee of the First Department. RICHARD SUPPLE, and HARVEY PRAGER, an associate (admitted in Massachusetts), assisted in the preparation of this article.
Reprinted with permission from the March 1, 2010 edition of the New York Law Journal ©2010 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 – firstname.lastname@example.org or visit www.almreprints.com.
1 See 22 NYCRR 691.4(m), 806.4(g), 1022.20(d)(3).
2 See 22 NYCRR 605.14(d).
3 See 22 NYCRR 605.22(b).
4 See 22 NYCRR 1022.20(c)(2).
5 See 22 NYCRR 1022.20(d)(1).
6 See 22 NYCRR 1022.20(d)(2).
7 See 22 NYCRR 806.5.
8 See 22 NYCRR 102.20(d)(1).
9 This situation is allayed to some extent by the attorney’s right to be heard in mitigation by the Appellate Division pursuant to 22 NYCRR 1022.20(d)(2). Pointedly, however, disciplinary decisions in the Fourth Department manifest a conspicuous lack of citation to case law or details as to mitigation.
10 See 22 NYCRR 605.13(q) and 605.13-a(g).
11 See 22 NYCRR 605.5, 605.7, 605.15.
12 See, e.g.,
, 7A.D.3d 37, 774 N.Y.S.2d 522 (1st Dept. 2004) (citing previously issued Letters of Caution as grounds for imposing an enhanced suspension).
13 See 22 NYCRR 691.6(a).
14 See 22 NYCRR 637.6(a).
15 See 22 NYCRR 691.6(c).
16 See 22 NYCRR 806.4(c)(1)(ii).
17 See 22 NYCRR 806.4(c)(c)(iv).
18 See 22 NYCRR 1022.19(d)(2)(v).
19 See 22 NYCRR 1022.19(d)(2)(iv).
20 See 22 NYCRR 1022.19(d)(2)(v).
22 See , 308 A.D.2d 180 (1st Dept. 2003).
23 See, e.g., , 67 A.D.3d 70 (2d Dept. 2009) (three-year suspension for conversion); , 51 A.D.3d 294 (2d Dept. 2008) (five-year suspension for conversion of client funds where attorney with past disciplinary history also commingled monies, charged excessive fees, and displayed a lack of candor during his disciplinary proceeding).
24 See, e.g., , A.D.3d, 2009 slip op. 09944 (4th Dept. Dec. 30, 2009) (three-month suspension for conversion during period of personal financial difficulties); , 46 A.D.3d 167 (4th Dept. 2007) (six-month suspension for conversion by attorney who was suffering from depression).
25 See, e.g., , 62 A.D.3d 1205 (3d Dept. 2009) (one-year suspension in conversion case stayed upon condition that attorney obtain extra continuing legal education credits); , 52 A.D.3d 1110 (3d Dept. 2008) (one-year suspension stayed upon condition that attorney submit quarterly reports from a certified public accountant attesting to sound account management practices); , 27 A.D.3d 947 (3d Dept. 2006) (two-year suspension stayed upon condition that attorney submit satisfactory quarterly reports from an accountant and mental health professional).
26 See, e.g., , 62 A.D.3d 151 (1st Dept. 2009) (censure despite failure to file for five years);
, 243 A.D.2d 75 (1st Dept. 1998) (censure despite failure to file for 9 years);
, 257 A.D.2d 209 (1st Dept. 1999) (censure despite failure to file for six years);
27 See, e.g.,
, 66 A.D.3d 377 (2d Dept. 2009) (censure despite failure to file for five years);
, 241 A.D.2d 260 (2d Dept. 1998) (censure despite failure to file for four years);
, 244 A.D.2d 146 (2d Dept. 1998) (censure despite failure to file for 2 years);
28 See, e.g.,
, 275A.D.2d 115 (2d Dept. 2000) (one-year suspension “notwithstanding the mitigation offered”).
29 See, e.g.,
, 158 A.D.2d 87 (4th Dept. 1990) (six-month suspension for failure to file for two years);
, 120 A.D.2d 72 (4th Dept. 1986) (six-month suspension for failure to file for four years).
30 See, e.g.,
, 166 A.D.2d 870 (3d Dept. 1990) (three-month suspension, in view of mitigating circumstances);
, 166 A.D.2d 871 (3d Dept. 1990) (three-month suspension, in view of mitigating circumstances);
, 92 A.D.2d 978 (3d Dept. 1983) (three-month suspension for failing to file for one year);
, 90 A.D.2d 561 (3d Dept. 1982) (three-month suspension for failing to file for one year);
, 71 A.D.2d 969 (3d Dept. 1979) (three-month suspension for six counts of failing to file tax returns).
31 See NYCRR Parts 603 and 605 [First Department]; Part 691 [Second Department]; Part 806 [Third Department]; Part 1022 [Fourth Department].