Tag Archives | Supreme Court

Appellate Review of Disciplinary Decisions

What appellate remedies are available for a New York lawyer aggrieved by a disciplinary decision of a special referee or hearing panel? The short answer is, “win below,” because opportunities for judicial review are limited, and the likelihood of reversal or modification is not high. This is especially true when a disciplinary determination is based, […]

Reprinted with permission from the May 29, 2013 edition of the New York Law Journal ©2013 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 – reprints@alm.com or visit www.almreprints.com.

  1. See 22 NYCRR §605.12(f)(1), 22 NYCRR §691.5-a(a), 22 NYCRR §806.5, and 22 NYCRR §1022.20(d)(1).
  1. See 22 NYCRR §605.13(q)(1).
  1. See 22 NYCRR §605.14.
  1. 22 NYCRR §605.14(g). In fact, hearing panels do modify with reasonable frequency, so this is one of the few opportunities for appellate “relief” in New York.
  1. 22 NYCRR §605.15(e)(1).
  1. See, e.g., In re Dale, 87 A.D.3d 198, 200, 927 N.Y.S.2d 267 (4th Dept. 2011) (“when the resolution of issues in [an attorney] disciplinary proceeding depends upon the credibility of witnesses, a referee’s findings are entitled to great weight”).
  1. See 22 NYCRR §806.5 [Third Department] (“The court shall refer issues of fact to a judge or referee to hear and report. 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”); 22 NYCRR §1022.20(d)(2) [Fourth Department] (“When no issue of fact is raised, or after completion of the hearing and report on such issue, the Appellate Division shall fix a time at which the respondent may be heard in mitigation or otherwise, unless the respondent waives in writing the privilege to be heard”).
  1. Mildner v. Gulotta, 405 F.Supp. 182, 213-14 (E.D.N.Y. 1976) (Weinstein, J., dissenting). Judge Jack Weinstein stated: The importance of oral argument before the fact finding court to assist it in drawing inferences and evaluating probative force of the evidence cannot be underestimated. It is an essential part of the trial which may not be denied to a litigant. The Supreme Court has just reemphasized this point in declaring unconstitutional a New York practice permitting the court to deny counsel the opportunity to make a summation at the end of a criminal case tried without a jury.
  1. Judiciary Law §90(8), citing N.Y. Const. Art. VI §3, which provides, in pertinent part, that an appeal may be taken as of right from a judgment or order of an Appellate Division which finally determines an action or proceeding that directly involves the construction of the constitution of the state or of the United States, or where one or more justices of the Appellate Division dissents from the determination of the court; see also Matter of Healy, 8 N.Y.2d 1137, 209 N.Y.S.2d 819 (1960) (appeal to the Court of Appeals from a disbarment will not lie as of right where no constitutional question is involved).
  1. Id.CPLR 5602(a)(1).
  2. CPLR 5602(a)(1).
  1. To be clear, however, a lawyer may make successive motions for leave, by first applying for leave from the Appellate Division and then, if leave is denied, by seeking leave from the Court of Appeals within the relevant time period after denial by the lower court.
  1. See, e.g., Del Bello v. Westchester County Bar Ass’n, 19 N.Y.2d 466, 472, 280 N.Y.S.2d 651, 655 (1967).
  1. Id.
  1. See, e.g., Matter of Citrin, 94 N.Y.2d 459, 706 N.Y.S.2d 72 (2000) (before denying a disbarred attorney’s reinstatement application, the Appellate Division has to provide the applicant with a copy of the report of the Committee on Character and Fitness so that the applicant might address any issues presented in the report).
  1. Matter of Zalk, 10 N.Y.3d 669, 862 N.Y.S.2d 305 (2008) (Dead Man’s Statute did not apply to preclude attorney from testifying).
  1. See, e.g., Matter of Mitchell, 40 N.Y.2d 153, 386 N.Y.S.2d 95 (1976) (attorney does not suffer deprivation of due process by virtue of fact that he has been disbarred during the pendency of an appeal of his conviction of a felony which formed the basis for his disbarment).
  1. Matter of Galasso, 19 N.Y.3d 688, 954 N.Y.S.2d 784 (2012) (affirming suspension of attorney for failure to maintain vigilance over client funds even when an employee committed the misappropriation of funds without the attorney’s involvement or knowledge).
  1. Younger v. Harris, 401 U.S. 37 (1971).
  1. Id. at 44.
  1. Moore v. Sims, 442 U.S. 415, 426 (1975).
  1. Middlesex County Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423 (1982).
  1. The two exceptions, where the federal courts permitted actions for injunctive relief to proceed, involved judges subject to judicial disciplinary proceedings, Butler v. The Alabama Judicial Inquiry Commission, 111 F.Supp.2d 1241 (M.D. Alabama, 2000) and Fink v. Supreme Court of Pennsylvania, 651 F.Supp. 1238 (M.D. Pennsylvania, 1987).
  1. Rooker v. Fidelity Trust, 263 U.S. 413 (1923) and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
  1. See Exxon Mobil v. Saudi Basic Industries, 544 U.S. 280 (2005) (affirming that the Rooker-Feldman doctrine was based on the certiorari jurisdiction statute, 28 U.S.C. §1257, and holding that it applies in cases “brought by state-court losers complaining of injuries caused by state-court judgments” rendered before district court proceedings commenced and inviting district court review and rejection of those judgments).

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