Archive | General

The First Department’s New Rules for Attorney Discipline

For those interested in the procedural nuances of bar discipline in the First Department, this column focuses on that court’s amended procedural rules (the First Department rules), issued contemporaneously with the new, statewide Rules for Attorney Disciplinary Matters, 22 NYCRR Part 1240, effective Oct. 1, 2016 (the statewide rules). In essence, the amended First Department […]

Reprinted with permission from the July 28, 2017 edition of the New York Law Journal ©2017, 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.

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New Rules for Attorney Disciplinary Matters: ‘Related Proceedings’

Major changes have come to attorney discipline in New York. New statewide rules governing attorney discipline procedures were implemented on Oct. 1, 2016. The new uniform rules are set forth in 22 NYCRR Part 1240. In previous columns, published prior to the effective date of the new rules, I addressed two main areas: (1) formal […]

Reprinted with permission from the “March 16, 2017″ edition of the “New York Law Journal ©2016 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. “Serious crimes” include felonies that lack felony analogs in New York, as well as misdemeanors with one or more of the elements listed in Judiciary Law §90(4)(d).

2. N.Y. Judiciary L. §90(4) provides, in pertinent part, that an attorney convicted of a serious crime “shall be suspended” until a final order of the appellate division ordering the attorney to show cause why a final order of suspension, censure or removal from office should not be made. However, “upon good cause shown” the appellate division may, “upon application of the attorney or on its own motion, set aside such suspension when it appears consistent with the maintenance of the integrity and honor of the profession, the protection of the public and the interest of justice.” N.Y. Judiciary L. §90(4)(f).

3. N.Y. Judiciary L. §468-A requires the biennial registration of all attorneys admitted in the State of New York. The attorney registration system is administered not by the appellate divisions, but by the Office of Court Administration (OCA). The registration fee is currently $375. See Hal R. Lieberman et al., “How Do I Get Back My Law License?,” NYLJ, Nov. 29, 2013.

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New Rules for Attorney Disciplinary Matters: Informal Proceedings

As noted in my last column, major changes are coming to attorney discipline. The new statewide rules governing attorney disciplinary procedures, which were originally scheduled to take effect on July 1, 2016 (the new “uniform rules’), are now set for implementation as of Oct. 1, 2016. The previous column focused on formal proceedings, or, as […]

Reprinted with permission from the September 29, 2015 edition of the New York Law Journal © 2016 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. Prior to the promulgation of the uniform rules, the First and Second Departments also issued Reprimands, which were “private” but did not constitute “informal discipline” because committees imposed Reprimands only after a hearing where the committee found misconduct in violation of an RPC. The committees no longer administer Reprimands under the uniform rules.

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New Rules for Attorney Disciplinary Matters: Formal Proceedings

Major changes are coming to attorney discipline in New York. Last December (2015), the Office of Court Administration, following recommendations in the final report of the Commission on Statewide Attorney Discipline established by then-Chief Judge Jonathan Lippman, issued new, statewide rules governing attorney disciplinary procedures to take effect July 1, 2016 (the new “uniform rules”). […]

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1. 22 N.Y.C.R.R. §1240.7(d)(2)(vi). The term “Committee” is previously defined in the uniform rules as follows:

§1240.4 Appointment of Committees

Each Department of the Appellate Division shall appoint such Attorney Grievance Committee or Committees (hereinafter referred to as “Committee”) within its jurisdiction as it may deem appropriate. Each Committee shall be comprised of at least 21 members, of which no fewer than 3 members shall be non-lawyers. A lawyer member of a Committee shall be appointed to serve as Chairperson. All members of the Committee shall reside or maintain an office within the geographic jurisdiction of the Committee. Two-thirds of the membership of a Committee shall constitute a quorum for the conduct of business; all Committee action shall require the affirmative vote of at least a majority of the members present.

2. 22 N.Y.C.R.R. §1240.4 provides, in pertinent part, that two-thirds of the membership of a committee shall constitute a quorum for the conduct of business; all committee action shall require the affirmative vote of at least a majority of the members present.

3. 22 N.Y.C.R.R. §605.7(a) provides that, in the case of recommendations by the Office of Chief Counsel for formal proceedings, the committee chairperson shall designate at least two members of the policy committee, at least one of whom is a lawyer, to review the recommendations.

4. 22 N.Y.C.R.R. §691.4(h) and (i).

5. 22 N.Y.C.R.R. §1022.20(a).

6. 22 N.Y.C.R.R. §1240.8(a)(1).

7. 22 N.Y.C.R.R. §1240.8(a)(1).

8. 22 N.Y.C.R.R. §1240.8(a)(2).

9. 22 N.Y.C.R.R. §1240.8(a)(3).

10. 22 N.Y.C.R.R. §1240.8(a)(5).

11. The uniform rules say nothing about plea bargaining before the filing of formal charges pursuant to §1240.8, but there is no logical reason any such bargaining cannot take place at an earlier stage.

12. 22 N.Y.C.R.R. §1240.8(a)(5)(i).

13. 22 N.Y.C.R.R. §1240.8(a)(5)(ii).

14. 22 N.Y.C.R.R. §1240.8(a)(5)(iii).

15. 22 N.Y.C.R.R. §1240.8(b)(1).

16. 22 N.Y.C.R.R. §1240.8(b)(2).

17. See 22 N.Y.C.R.R. §605.14.

18. 22 N.Y.C.R.R. §1240.8(b)(2).

19. In fact, at least one of those courts has historically even discouraged reference to prior case law or recommendations from below on sanction.

20. 22 N.Y.C.R.R. §1240.8(b)(1).

21. 22 N.Y.C.R.R. §1022.20(d)(1).

22. 22 N.Y.C.R.R. §605.13(q)(3).

23. Examples include: amended or supplemental pleadings are allowed only by leave of the court (22 N.Y.C.R.R. §1240.8(a)(1)), the court shall permit or require only such appearances as it deems necessary in each case (22 N.Y.C.R.R. §1240.8(a)(1)), statements of disputed and undisputed facts and law must be submitted to the court (22 N.Y.C.R.R. §1240.8(a)(2)), disclosure by both parties with respect to any disputed issue of fact must be provided “except as otherwise ordered by the Court” (22 N.Y.C.R.R. §1240.8(a)(3)), and all applications and motions are to be directed to the court (22 N.Y.C.R.R. §1240.8(c)).

24. See 22 N.Y.C.R.R. §806.5; 22 N.Y.C.R.R. §1022.20(d)(2).

25. See 22 N.Y.C.R.R. §605.13(p)(1).

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Fostering Efficiency in the Attorney Disciplinary Process

My last column focused on two aspects of the New York State Commission on Statewide Attorney Discipline’s recently released report recommending various reforms: uniformity (consistency) and fairness.1 This column considers additional recommendations described in the report as “fostering efficiency” in our disciplinary system. Translation: addressing perceived, undue delays.2 As discussed in my last column, on March […]

Reprinted with permission from the “January 21, 2016″ edition of the “New York Law Journal”© “2016” 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. The commission’s Report was released on Sept. 23, 2015. On Dec. 29, 2015, the Office of Court Administration announced the adoption of new uniform attorney discipline rules, promulgated as Part 1240 of the Rules of the Appellate Division, 22 NYCRR Part 1240, which will take effect on July 1, 2016. The new rules embody some, but not all, of the reforms recommended in the commission’s report. Subsequent columns will focus on the new rules.

2. There is no bright-line definition for “undue,” “unjustified,” or “unwarranted” delay. In essence, such terms generally reflect lengthy delays that cannot be explained by a corresponding complexity in the underlying matter.

3. To determine whether undue delay exists in the disciplinary process, the subcommittee considered: written submissions from numerous bar leaders, attorneys and legal services consumers; testimony received during hearings held by the commission; and, data collected from the four Departments with respect to disciplinary matters that resulted in a final order of sanction during the period 2012-2014. The average total days for all matters from the date of opening of an investigation through final order was 856 days. However, because the data the subcommittee received did not correlate the total time with the relative “complexity” of the underlying matters, the subcommittee was reluctant to conclude that the data established that “undue” delay exists, notwithstanding that the average total time was considerable.

4. Among the four Departments, only the First Department provides a procedure for intermediate administrative review of a referee’s report by designated hearing panels. Hearing panels have “the power and duty to review the referee’s report and recommendation and to make such determination as it may deem appropriate.” 22 NYCRR §605.22(2)(b)(1). After the referee issues a report and recommendation, the staff attorney and respondent have the opportunity to present oral argument and written submissions to the hearing panel. The hearing panel may then confirm, modify, or disaffirm the report and recommendation. 22 NYCRR §605.14(g)(1). For a more detailed commentary, see Hal R. Lieberman, et al., New York Attorney Discipline: Practice and Procedure (New York Law Journal Books/ALM Media 2014) (updated for 2016).

5. Since 1986, and the landmark Court of Appeals case authorizing interim suspensions, Matter of Padilla, 67 N.Y.2d 440, 503 N.Y.S.2d 550 (1986), New York lawyers have been subject to suspension from practice on an interim basis, without formal charges and an evidentiary hearing, premised on proof of immediate danger to the bar and public. Evidence of such immediate danger can be shown in one of the following ways: (1) noncooperation with the disciplinary agency; (2) a substantial admission under oath that the attorney has committed an act of serious misconduct; (3) other uncontested evidence of serious professional misconduct; and, in the First Department only, an attorney’s willful failure or refusal to pay money owed to a client, which debt is demonstrated by an admission, a judgment, or other clear and convincing evidence. See 22 NYCRR §603.4(e) [First Department]; 22 NYCRR §691.4(l)(1) [Second Department]; 22 NYCRR §806.4(f) [Third Department]; 22 NYCRR §1022.20(d)(3)(d) [Fourth Department]. See also Hal R. Lieberman, et al., New York Attorney Discipline: Practice and Procedure (New York Law Journal Books/ALM Media 2014) (updated for 2016).

6. Although the courts did not adopt all of the commission’s recommendations, some of the newly adopted rules will foster efficiency in the attorney discipline process by the inclusion of provisions for notifying the accused lawyers earlier in the course of an investigation, opening new ways for lawyers to get information about their cases, granting greater latitude for “plea bargaining,” expanding opportunities for lawyers to be diverted into monitoring programs after complaints related to substance abuse, and terminating the First Department’s two tier hearing process that currently mandates review by hearing panels of hearing officers’ findings, conclusions and sanction recommendations.

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Report on Statewide Attorney Discipline: Uniformity and Fairness

On March 30, 2015, Chief Judge Jonathan Lippman announced the formation of a Commission on Statewide Attorney Discipline, to be made up of leaders from New York’s bench and bar (the author was on the commission). The stated mission was to “conduct a comprehensive review of [New York’s] attorney disciplinary system to determine what is […]

Reprinted with permission from the “October 23, 2015″ edition of the “New York Law Journal”© “2015” 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. Report of the Commission on Statewide Attorney Discipline, September 2015.

2. See Stephen Gillers, “Lowering the Bar: How Lawyer Discipline in New York Fails to Protect the Public,” 17 N.Y.U. J. Legis. & Pub. Pol’y 485 (2014).

3. Report at 47 (emphasis added).

4. See 22 NYCRR Parts 603, 605 [1st Dept.]; 22 NYCRR Part 691 [2d Dept.]; 22 NYCRR Part 806 [3d Dept.]; 22 NYCRR Part 1022 [4th Dept.].

5. Report at 47.

6. Matter of Dunn, 22 N.Y.3d 699, 3 N.Y.S.3d 751 (2015).

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‘Dunn’ : Collateral Estoppel and Attorney Discipline

When I first wrote about the use of collateral estoppel in attorney discipline proceedings 17 years ago,1 most disciplinary and grievance committees had not applied the doctrine except to establish liability in criminal conviction cases or to impose reciprocal discipline based upon discipline in a foreign jurisdiction. The idea of applying collateral estoppel to a […]

Reprinted with permission from the “June 16, 2015″ edition of the “New York Law Journal”© “2015” 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. Hal R. Lieberman, “Use of Collateral Estoppel in Attorney Disciplinary Proceedings,” NYLJ, July 27, 1998.

2. Matter of Capoccia, 59 N.Y.2d 549 (1983); Matter of Friedman, 196 A.D.2d 280 (1st Dept. 1994).

3. See, e.g., Matter of Klarer, 66 A.D.3d 247 (2d Dept. 2009); Matter of Duffy, 117 A.D.3d 124 (2d Dept. 2014); Matter of Capoccia, 272 A.D.2d 838 (3d Dept. 2000).

4. 24 N.Y.3d 699 (2015).

5. See Securities & Exch. Commn. v. Smith, 798 F.Supp.2d 412 (N.D.N.Y. 2011)

6. Dunn, 798 F.Supp.2d at 441-442.

7. Securities & Exch. Commn. v. Smith, 710 F.3d 87, 94 (2d Cir. 2013).

8. Matter of Dunn, 111 A.D.3d 1019, 1020 (3d Dept. 2013).

9. Dunn, 24 N.Y.3d at 704 (distinguishing Matter of Levy, 37 N.Y.2d 279, 281 (1975)).

10. Dunn, 24 N.Y.3d at 704.

11. Id. at 705.

12. Commissioner of the State Ins. Fund v. Low, 3 N.Y.2d 590, 595 (1958).

13. Remington Rand Corp. v. Amsterdam-Rotterdam Bank, NV, 68 F.3d 1478, 1486 (2d Cir. 1995).

14. Dunn, 24 N.Y.3d at 705.

12. Schwartz v. Public Adm’r, 24 N.Y.2d 65, 71 (1969) (“There must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and second, there must have been a full and fair opportunity to contest the decision said to be controlling.”).

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‘Law Firm’ Discipline and Other Noteworthy Cases; Attorney Discipline

The trend toward leniency in Second Department escrow fund misappropriation cases, which I identified in a previous column,1 continued in Matter of Francis.2 In the Francis case, the respondent Marc A. Francis admitted that he received $10,000 in a fiduciary capacity on behalf of a client, but then drew approximately 14 checks and made additional transfers against […]

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  1. Hal R. Lieberman, “Recent Developments in Disciplinary Case Law,” NYLJ, Nov. 10, 2014.
  2. 117 A.D.3d 212 (2d Dept. 2014).
  3. 116 A.D.3d 13 (2d Dept. 2014).
  4. In 1996, New York, by adding “or law firm” to the introductory phrase of DR 1-102, became the first jurisdiction in the United States-and still, with New Jersey, one of only two-that subjects law firms as entities to professional discipline.
  5. 118 A.D.3d 54 (2d Dept. 2014).

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Recent Developments in Disciplinary Case Law

In 2013-2014, the New York appellate courts handed down a number of noteworthy disciplinary decisions. The following is a summary and brief commentary with respect to several of those cases that, in the author’s view, deserve to be highlighted. Registration Requirement New York Judiciary Law §468-a (Biennial Registration of Attorneys) provides that attorneys admitted to […]

Reprinted with permission from the November 10, 2014 edition of the New York Law Journal ©2014 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.

Endnotes:

1. Matter of Chin, 118. A.D.3d 61 (1st Dept. 2014).

2. New York Judiciary Law §90(2) provides in pertinent part:

2. The supreme court shall have power and control over attorneys and counsellors-at-law and all persons practicing or assuming to practice law, and the appellate division of the supreme court in each department is authorized to censure, suspend from practice or remove from office any attorney and counsellor-at-law admitted to practice who is guilty of professional misconduct, malpractice, fraud, deceit, crime or misdemeanor, or any conduct prejudicial to the administration of justice; and the appellate division of the supreme court is hereby authorized to revoke such admission for any misrepresentation or suppression of any information in connection with the application for admission to practice.

New York Judiciary Law §468-a (Biennial Registration of Attorneys provides:

5. Noncompliance by an attorney with the provisions of this section and the rules promulgated hereunder shall constitute conduct prejudicial to the administration of justice and shall be referred to the appropriate appellate division of the supreme court for disciplinary action.

NYCRR §1500.23 (Reporting Requirements) provides:

(a) Attorney obligations. Each attorney subject to New York’s continuing legal education requirements shall retain the certificate of attendance or other documentation required by the board for each approved education course, program or activity for at least four years from the date of the course, program or activity.

(b) Certification. Except as otherwise authorized by this Part, each attorney subject to New York’s continuing legal education requirements is required to certify along with the submission of his or her biennial attorney registration statement that the attorney has satisfactorily completed 24 credit hours of continuing legal education for the current biennial reporting cycle and that the attorney has retained the certificates of attendance or other documentation required by the CLE board for the accredited courses, programs or activities.

3. See, e.g., Matter of Attorneys in Violation of Judiciary Law §468-a, 64 A.D.3d 187 (1st Dept. 2009); see also Matter of Attorneys in Violation of Judiciary Law §468-a, 230 A.D.2d 366 (1st Dept. 1997); 240 A.D.2d 106 (1st Dept. 1998); 247 A.D.2d 158 (1st Dept. 1998); 257 A.D.2d 127 (1st Dept. 1999); 36 A.D.3d 34 (1st Dept. 2006); 51 A.D.3d 1 (1st Dept. 2008). The description of these suspensions as “administrative” in nature is the author’s. Technically, the aforesaid matters describe a “disciplinary” proceeding, but, as noted infra, the reinstatement process is perfunctory and there is no requirement of which the columnist is aware requiring any such suspension be reported as “discipline.”

4. Matter of Jones, 118 A.D.3d 41 (2d Dept. 2014).

5. Matter of Jones, 118 A.D.3d at 42-46.

6. Matter of Ehrenfeld, 992 N.Y.S.2d 569 (2d Dept. 2014).

7. See, e.g., Matter of Dobkin, 21 A.D.3d 23 (2d Dept. 2005) (five-year suspension for not preserving escrow funds in two real estate transactions, notwithstanding that no client suffered financially).

8. Matter of Ehrenfeld, 992 N.Y.S.2d at 570.

9. Matter of Dunn, 111 A.D.3d 1019 (3d Dept. 2013).

10. Matter of Dunn, 22 N.Y.3d 861 (2014).

11. However, “collateral estoppel” as a general concept is broadly applied in other attorney disciplinary contexts, namely, where a lawyer is convicted of a crime [see 22 NYCRR §603.12 (1st Dept.); 22 NYCRR §691.7 (2d Dept.); 22 NYCRR § 806.7 (3d Dept.); 22 NYCRR §1022.21 (4th Dept.)] or has engaged in parallel misconduct in a foreign jurisdiction, i.e., reciprocal discipline [see 22 NYCRR §603.3 (1st Dept.); 22 NYCRR §691.3 (2d Dept.); 22 NYCRR §806.19 (3d Dept.); 22 NYCRR §1022.22 (4th Dept.)]. Collateral estoppel in the attorney disciplinary context with respect to prior civil adjudications has evolved in three of the four Departments, to varying degrees, as a result of case law. See, e.g., Matter of Slater, 156 A.D.2d 89 (1st Dept. 1990); Matter of Ryan, 189 A.D.2d 96 (1st Dept. 1993); Matter of Klarer, 66 A.D.3d 247 (2d Dept. 2009); Matter of Duffy, 117 A.D.3d 124 (2d Dept. 2014); Matter of Babigian, 247 A.D.2d 189 (3d Dept. 1998); Matter of Capoccia, 32 A.D.3d 189 (3d Dept. 2000).

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Is New York’s Disciplinary System Truly Broken?

In a recently published law review article, “Lowering the Bar: How Lawyer Discipline in New York Fails to Protect the Public,”1 Stephen Gillers examines attorney discipline through the prism of 577 published disciplinary opinions that he painstakingly reviewed. Gillers’ conclusions and observations are assuredly troubling for a regulatory system that presumably exists to protect clients and […]

Reprinted with permission from the July 16, 2014 edition of the New York Law Journal ©2014 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. New York University Journal of Legislation and Public Policy, Vol. 17, #2 (June 18, 2014).
  2. __A.D. 3d __, 2014 N.Y. Slip Op. 04453 (1st Dept., June 17, 2014).
  3. The Second, Third, and Fourth Departments’ disciplinary procedural rules omit even the limited deadlines that the First Department’s rules contain.
  4. Judiciary Law §468-a is a statute requiring the biennial registration of every lawyer admitted to practice in New York.
  5. Statistics provided by OCA.
  6. Judiciary Law §468-a(4).

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Should Disqualification Lead to Discipline?

In New York and elsewhere, attorney discipline has been imposed rarely, sporadically, and seemingly randomly, after lawyers or their firms have been disqualified in civil or criminal litigation due to a conflict of interest or for other infractions. What factors should trigger a subsequent disciplinary investigation? Does disqualification for a conflict of interest or other […]

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  1. See, e.g., Universal City Studios v. Reimerdes, supra, p. 2.
  1. “Issue” conflicts arise if advocating a legal position on behalf of one client creates precedent adverse to the interests of another client in a different case. See, N.Y. R.P.C. 1.7, comment 24. See, e.g., United States v. Binday, 2013 WL 1104258 (S.D.N.Y. March 14, 2013).
  1. The “hot potato” doctrine provides that a lawyer may not drop an existing client like a hot potato in order to take on a new matter adverse to the interests of the existing client absent informed consent. See, e.g., Stratagem Development Corp. v. Heron Int’l N.V., 756 F.Supp. 789 (S.D.N.Y. 1991).
  1. The “advocate-witness” rule, N.Y. R.P.C. 3.7, concerns combining the roles of advocate and witness wherein the trier of fact may be confused or misled by the lawyer’s serving in both capacities. See, e.g., Skiff-Murray v. Murray, 3 A.D.3d 610 (3d Dept. 2004).
  1. 98 F.Supp.2d 449 (S.D.N.Y. 2000).
  1. Id. at 451; see Cinema 5 Ltd. v. Cinerama, Inc., 528 F.2d 1384 (2d Cir. 1976).
  1. Id. at 455.
  1. Id. at 456.
  1. 84 N.Y.2d 562 (1994).
  1. 281 A.D.2d 23 (1st Dept. 2001).
  1. Harvard Law Review, Developments in the Law: “Conflicts of Interest in the Legal Profession,” Vol. 94, No. 6, p. 1501 (April 1981), citing Maryland State Bar Ass’n v. Agnew, 271 Md. 543, 549, 318 A.2d 811, 814 (1974) (other citations omitted).

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How Do I Get Back My Law License?

In the last few weeks, readers of this journal will have seen that literally thousands of New York lawyers have been administratively suspended from law practice for violating New York Judiciary Law sections 90(2) and 468-a, the statutes that require all New York licensed attorneys to biennially register with the Office of Court Administration (OCA) […]

Reprinted with permission from the November 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. Readers of this column should not infer that there are no disciplinary consequences for failure to reregister. Noncompliance with the attorney registration provisions may exacerbate difficulties for an attorney under investigation by a disciplinary authority for other matters, particularly where violation of the registration rules makes it harder for a disciplinary committee to locate and communicate with the attorney. See Matter of Anyikwa, 109 A.D.3d 76 (1st Dept. 2013) (suspending attorney in part due to failure to comply with Judiciary Law §468-a(2)); Matter of Banji, 106 A.D.3d 73 (1st Dept. 2013) (suspending attorney and noting that his failure to register for the biennial period and failure to notify OCA of changes to his addresses and telephone numbers is prejudicial to the administration of justice).
  1. See 22 N.Y.C.R.R. §§603.14(a)(1) (First Department); 1022.28(b)(2) (Fourth Department).
  1. See N.Y. Judiciary Law §90(5)(b).
  1. The First, Second, and Fourth departments require petitioners to use application forms specifically provided in the rules. See 22 N.Y.C.R.R. §§603.14(m) (First Department); 691.11(b) (Second Department); 1022.28(a)(3) and (b)(3) (Fourth Department).

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Lawyers Who Commit Crimes: Disciplinary Consequences

Lawyers convicted of criminal offenses not only face penal sanctions but, not surprisingly, are also subject to professional discipline. In New York, Judiciary Law §90(4) strictly governs the effect of criminal conduct on subsequent discipline. It essentially divides crimes that attorneys commit into three categories for purposes of discipline: (1) felonies, warranting automatic disbarment upon […]

Reprinted with permission from the August 22, 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.

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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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Discipline for ‘Private Conduct’: Rationale and Recent Trends

Lawyers must act ethically 24/7. That is, we are held to a consistent standard of integrity that exceeds mere adherence to professional norms in our legal lives. We are also expected to behave ethically in our private business affairs. When that does not happen, judicial authorities have repeatedly, and sometimes severely, disciplined lawyers for peccadilloes […]

Reprinted with permission from the February 19, 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. Hal R. Lieberman and Richard Supple, “Private Conduct and Professional Discipline,” NYLJ, July 23, 2002.
  1. Judiciary Law §90(4)(a).
  1. Judiciary Law §90(4)(d).
  1. See, e.g., Matter of Silberman, 83 AD3d 95 (1st Dept. 2011) (six-year suspension for possessing and engaging in distribution of illegal narcotics); Matter of Goldman, 71 AD3d 9 (1st Dept. 2009) (one-year suspension for attorney who pleaded guilty to one count of failing to file New York State tax return, where attorney failed to file both state and federal tax returns for seven years); Matter of Clarey, 55 A.D.3d 209 (2d Dept. 2008) (one-year suspension for attorney who pleaded guilty to operating a motor vehicle under the influence of alcohol and leaving the scene of an accident); Matter of Felsen, 40 A.D.3d 1257 (3d Dept. 2007) (lawyer disbarred after being convicted out of state of forging a physician’s signature to a prescription form in the name of a fictitious person in order to obtain a pain killer at a pharmacy; Matter of Ugweches, 69 AD3d 125 (1st Dept. 2009) (attorney automatically disbarred upon his conviction for the class D felony of second-degree assault).
  1. Former EC 1-5 provided as follows:

A lawyer should be temperate and dignified, and should refrain from all illegal and morally reprehensible conduct. Because of the lawyer’s position in society, even minor violations of law by a lawyer may tend to lessen public confidence in the legal profession.

When the new Rules of Professional Conduct took effect on April 1, 2009, Comment [2] to Rule 8.4, as originally adopted by the New York State Bar Association Committee on Standards of Attorney Conduct (COSAC) and the state bar, stated in pertinent part:

[2] …Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for illegal conduct that indicates lack of those characteristics relevant to law practice. Violations involving violence, dishonesty, fraud, breach of trust, or serious interference with the administration of justice are illustrative of illegal conduct that reflects adversely on fitness to practice law. Other types of illegal conduct may or may not fall into that category, depending upon the particular circumstances.

Referring to former EC 1-5 (and apparently responding to critics of Comment [2]), COSAC’s 2011 Report to the House of Delegates said:

Although COSAC believes there is some illegal conduct that does not reflect adversely on a lawyer’s honesty, trustworthiness or fitness as a lawyer, there is an argument, as presented in the former EC, that even minor transgressions may tend to lessen public confidence in the legal profession and thereby draw into question a lawyer’s fitness as a lawyer.

Thus, COSAC’s 2011 Report concluded that it was “inappropriate for the Comment to take a bright-line position on an arguable question, particularly one that represents a significant shift from a former EC that is not supported by a change in the Rule,” and that any change in ethical standards might “be better left to the guidance of ethics committees in particular fact situations.”

The amended version of Comment [2] to Rule 8.4 now reads, in full, as follows:

[2] Many kinds of illegal conduct reflect adversely on fitness to practice law. Illegal conduct involving violence, dishonesty, fraud, breach of trust, or serious interference with the administration of justice is illustrative of conduct that reflects adversely on fitness to practice law. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.

  1. In re Dear, 91 A.D.3d 111 (1st Dept. 2011) (six-month suspension).
  1. In re Sibley, 61 A.D.3d 85 (4th Dept. 2009) (imposition of reciprocal discipline upon attorney suspended in Florida for three years).
  1. Matter of Gurvey, —N.Y.S.2d—, 2012 WL 6013093 (1st Dept. 2012) (six-month suspension; although the court acknowledged that respondent was not acting as an attorney at the time of the subject misconduct, it affirmed that it has “disciplined attorneys for conduct that is ‘both in and out of their profession so as to ensure the public’s right to representation by attorneys who are worthy of trust'”).
  1. In re Solny, 96 A.D.3d 76 (1st Dept. 2012) (two-year suspension although respondent was not acting in his professional capacity as an attorney, but rather as the coexecutor of his uncle’s will).
  1. In re Bikman, 304 A.D.2d 162 (1st Dept. 2003) (18-month suspension; court noted that “[e]ven if respondent did not quite manage to commit criminal or common-law fraud, she surely was dishonest, she was deceitful and she did misrepresent,” and “a lawyer’s unethical conduct, even when it occurs outside the practice of law, is a proper concern of the Disciplinary Committee because it tends to reflect adversely on the legal profession as a whole”).
  1. Lieberman and Supple, supra note 1. Thus, in our view, for example, dishonesty in applying for a mortgage or financial aid will likely be subject to discipline, whereas marital infidelity—however one views it from a moral perspective—falls within a zone of privacy that should be out of bounds for disciplinary agencies.

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New York’s Attorney Discipline System: Does It Meet ‘Due Process’ Requirements?

This is the last in a series of three columns on the subject of due process and New York’s discipline system.  The first two articles focused, respectively, on (1) the historical, constitutional development of due process rights in attorney discipline cases, both nationally and in New York,[1] and (2) particular aspects of New York’s discipline […]

Reprinted with permission from the August 31, 2012 edition of the New York Law Journal ©2012 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] Hal R. Lieberman, “New York’s Attorney Discipline System: How Much Process Is ‘Due’?,” N.Y.L.J., April 4, 2012.

[2] Hal R. Lieberman, “New York’s Attorney Discipline System: Does it Meet ‘Due Process’ Requirements?,” N.Y.L.J., August 31, 2012.

[3] See 22 NYCRR §§ 603.4(e)(1)(i); 691.4(l)(1)(i); 806.4(f)(1)(i); 1022.20(d)(3)(d).

[4] See, e.g., Matter of Boter, 27 A.D.3d 137 (1st Dep’t 2006) (interim suspension ordered based on attorney’s lack of cooperation); Matter of Hamerman, 211 A.D.2d 85 (2nd Dep’t 1995) (failure to respond to Grievance Committee’s demands); Matter of Ashe, 300 A.D.2d 737 (3rd Dep’t 2002) (suspension of attorney until such time as she complied with court issued subpoena duces tecum).

[5] 385 U.S. 511, 87 S. Ct. 625 (1967).

[6] See, e.g., Matter of Harris, 97 A.D.3d 96, 98 (1st Dep’t 2012) (“[W]hile the inference from respondent’s invocation of his Fifth Amendment privilege may not alone permit a finding of misconduct, the bank records obtained by the Committee together with that inference sufficiently demonstrate that respondent engaged in professional misconduct by misappropriating or converting escrow funds[.]”) (citation omitted).

[7] 22 NYCRR §§ 603.5(a), 691.5(a), 806.4(e), and 1022.19(d).

[8] See, e.g., 22 NYCRR § 605.17(b).  Note, however, that it is generally the practice of committee staff counsel to provide access to the evidence and the names of witnesses that the staff intends to introduce in its case in chief.  In the First Department, 22 NYCRR § 605.13(a) requires staff counsel and the respondent (or her attorneys) to hold a pre-hearing conference five days after the answer is served and to complete and sign a pre-hearing stipulation in conformance with the form set forth in 22 NYCRR § 605.12(d).  The form calls for the parties to specify, inter alia, the undisputed facts, the parties’ contentions, documents to be offered in evidence during the hearing, and witnesses to be called.

[9] 596 A.2d 592 (D.C.App. 1991).

[10] Id. at 595 (citations omitted).  The Court went on to hold that the Hearing Committee had properly permitted the respondent “reasonable discovery,” under any feasible definition of that term, when it granted a portion of the respondent’s discovery request for various documents from the complainant, a former client, but denied what it deemed to be the respondent’s otherwise broad demands.

[11] 417 Mass. 81 (1994).

[12] 576 F.2d 380, 386 (1st Cir. 1978).

[13] 417 Mass. at 87 (citation omitted).  However, because the respondent failed to seek any discovery orders through procedures available to attorneys in Massachusetts disciplinary proceedings, the Court concluded that “[respondent] cannot now claim he was denied due process.” Id. at  87-88.

[14]  The Model Enforcement Rules are available at http://www.americanbar.org/groups/professional_responsibility/resources/lawyer_ethics_regulation/model_rules_for_lawyer_disciplinary_enforcement.html.

[15] National Labor Relations Board v. Amalgamated Clothing Workers of America, AFL-CIO, Local 990, 430 F.2d 966 (5th Cir. 1970); see also ABA Model Enforcement Rule 11(6) [“Upon conclusion of the proceedings, the court shall promptly enter an appropriate order.  The decision of the court shall be in writing and state the reasons for the decision.” (emphasis added)].

[16] 22 NYCRR §§ 806.5; 1022.20(d)(2).  All lawyers may, of course, make written submissions.

[17] Mildner v. Gulotta, 405 F.Supp. 182, 213-14 (E.D.N.Y. 1976) (citation omitted) (Weinstein, J., dissenting).

[18] See Model Enforcement Rule 11(6)(1) (“Within [sixty] days after the court grants review, the respondent and disciplinary counsel may file briefs and present oral arguments pursuant to the rules governing civil appeals.”); see also Matter of Ruffalo, 390 U.S. 544 (1968) (disbarment proceedings “are adversary proceedings of a quasi-criminal nature”).  The Second Circuit has expanded upon Ruffalo, explaining that “a court’s disciplinary proceeding against a member of its bar is comparable to a criminal rather than to a civil proceeding.” United States v. Private Sanitation Indus. Assoc. of Nassau/Suffolk, Inc., 44 F.3d 1082, 1086 (2d Cir. 1995), quoting Erdmann v. Stevens, 458 F.2d 1205, 1209 (2d Cir. 1973).  The New York State Court of Appeals has acknowledged the quasi-criminal nature of disciplinary proceedings.  Matter of Kelly, 23 N.Y.2d 368, 384, 296 N.Y.S.2d 937, 951 (1968).

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Attorney Discipline System: Does it Meet ‘Due Process’ Requirements?

In a previous column,1 we focused on the historical constitutional development of due process rights in attorney discipline cases, and briefly highlighted the relatively few New York cases addressing procedural due process rights accorded to New York lawyers facing disciplinary charges. This article attempts to drill down by discussing several particular aspects of New York’s […]

Reprinted with permission from the August 31, 2012 edition of the New York Law Journal ©2012 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. Hal R. Lieberman, “New York’s Attorney Discipline System: How Much Process Is ‘Due’?” NYLJ, April 4, 2012.
  2. The Model Enforcement Rules are available at http://www.americanbar.org/groups/professional_responsibility/resources/lawyer_ethics_regulation/model_rules_for_lawyer_disciplinary_enforcement.html.
  3. 67 N.Y.2d 440 (1986).
  4. Id.
  5. 79 N.Y.2d 520 (1992).
  6. Id. at 525 (citations omitted).
  7. 22 N.Y.C.R.R. §603.4(e)(2).
  8. In any case, an interimly suspended attorney would be well advised to request a prompt post-suspension hearing, if grounds exist, and in that regard should fully cooperate with the disciplinary investigation if prior non-cooperation contributed to the interim suspension.
  9. 118 A.D.2d 15 (1st Dept. 1986).
  1. See, e.g., Matter of Slater, 156 A.D.2d 89 (1st Dept. 1990); Matter of Ryan, 189 A.D.2d 96 (1st Dept. 1993); Matter of MacKenzie, 32 A.D.3d 189 (2d Dept. 2006); Matter of Klarer, 66 A.D.3d 247 (2d Dept. 2009); Matter of Capoccia, 272 A.D.2d 838 (3d Dept. 2000).
  2. Matter of Schwartz, 24 N.Y.2d 65 (1969).
  3. Id.
  4. See Hal R. Lieberman, “Use of Collateral Estoppel in Attorney Disciplinary Proceedings,” NYLJ, July 27, 1998; see also Commissioner of the State Insurance Fund v. Low, 3 NY2d 590 (1958) (describing collateral estoppel as “essentially a rule of justice and fairness,” but one that can also be “elusive and difficult to apply”).
  5. Matter of Capoccia, 59 N.Y.2d 549 (1983); Matter of Friedman, 196 A.D.2d 280 (1st Dept. 1994).
  6. 390 U.S. 544 (1968).
  7. The respondent in Matter of Friedman petitioned the U.S. Supreme Court for a writ of certiorari, which the Court denied on Oct. 3, 1994. 513 U.S. 820 (1994).
  8. Model Enforcement Rule 18.3.
  9. See N.Y. A.P.A. §306(1).
  10. 10 N.Y.3d 669 (2008).
  11. Model Enforcement Rule 18.2.

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New York’s Attorney Discipline System: How Much ‘Process’ Is ‘Due’?

This article concerns the due process rights of New York lawyers facing disciplinary charges. It highlights the historical constitutional development of due process rights in attorney discipline cases, briefly focuses on the relatively few precedents that address procedural due process in New York’s uniquely disjointed lawyer disciplinary system, and then describes the ABA’s Model Rules […]

Reprinted with permission from the March1, 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 – reprints@alm.com or visit www.almreprints.com.

  1. 22 U.S. 529 (1824).
  1. 71 U.S. 333 (1866).
  1. 74 U.S. 364 (1868).
  1. Id. at 375.
  1. 390 U.S. 544 (1968).
  1. Id. at 551.
  1. 385 U.S. 511 (1967).
  1. 501 U.S. 1030 (1991).
  1. In Younger v. Harris, 401 U.S. 37 (1971) and its progeny, the U.S. Supreme Court espoused a strong federal policy against federal court interference with pending state judicial proceedings absent extraordinary circumstances. The basis for “Younger abstention” is the notion of “comity,” which includes “a proper respect for state functions.” Id. at 44. Accordingly, where vital state interests are involved, a federal court should abstain “unless state law clearly bars the interposition of the constitutional claims.” Moore v. Sims, 442 U.S. 415, 426 (1975). In Middlesex County Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423 (1982), the Supreme Court applied “Younger abstention” to bar disciplinary proceedings. In brief, federal courts will generally abstain from stopping a state disciplinary proceeding after it has begun. Moreover, the “Rooker-Feldman” doctrine, named for two Supreme Court cases interpreting federal subject matter jurisdiction under 28 U.S.C. §1257, limits review of state disciplinary proceedings, once they are over, to the U.S. Supreme Court through a petition for a writ of certiorari.
  1. 24 N.Y.2d 150 (1969) (affirming the principle in an administrative proceeding).
  1. 23 N.Y.2d 368 (1968).
  1. Id. at 384.
  1. 63 N.Y.2d 331 (1984).
  1. Id. at 339.
  1. 59 N.Y.2d 549 (1983).
  1. 67 N.Y.2d 440 (1986).
  1. Id. at 201-202.
  1. Id. at 220.
  1. In the 1960s, an American Bar Association commission chaired by former U.S. Supreme Court Justice Tom Clark conducted a comprehensive study of bar discipline systems throughout the United States. The Clark Commission issued a scathing report in 1970, which described the state of lawyer discipline as a “scandalous” process. See Special Comm. on Evaluation of Disciplinary Enforcement, American Bar Ass’n, Problems and Recommendations in Disciplinary Enforcement 1 (1970). The Clark Commission’s findings became a catalyst for action. By the mid-1970s, many state courts around the country assumed greater responsibility for managing their disciplinary processes and hired professional lawyers and investigators to staff disciplinary agencies. The ABA’s House of Delegates adopted the Model Enforcement Rules in August 1989, and amended them in 1993, 1996, 1999, and 2002.
  1. The ABA Model Enforcement Rules are available at http://www.americanbar.org/groups/professional_responsibility/resources/lawyer_ethics_regulation/model_rules_for_lawyer_disciplinary_enforcement.html.
  1. See, e.g., Mark J. Fucile, “Giving Lawyers Their Due: Due Process Defenses in Disciplinary Proceedings,” 20 No. 4 Prof. Law. 28 (2011); Mary M. Devlin, “The Development of Attorney Disciplinary Procedures in the United States,” 2008 Prof. Law. 359 (2008); Wilburn Brewer, Jr., “Due Process in Lawyer Disciplinary Cases: From the Cradle to the Grave,” 42 S.C. L. Rev. 925 (1991).

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Q & A With Hal R. Lieberman

Attorneys who bully or neglect their clients, steal from escrow accounts, overbill, lie to authorities and generally ignore the Code of Professional Responsibility have been the focus of Hal R. Lieberman’s practice for more than 25 years. Mr. Lieberman honed his skills in the legal ethics and professional liability field as assistant bar counsel in […]

Reprinted with permission from the March 25, 2011 edition of the New York Law Journal ©2011 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.

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New York’s Lawyer Disciplinary System; Is It Fair?

Professional Responsibility 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 […]

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 – reprints@alm.com 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).

21 , 10 A.D.3d 141, 144 (1st Dept. 2004).

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);

243 A.D.2d 69 (1st Dept. 1998);

221 A.D.2d 28 (1st Dept. 1996);

179 A.D.2d 15 (1st Dept. 1992).

27 See, e.g.,

66 A.D.3d 377 (2d Dept. 2009) (censure despite failure to file for five years);

291 A.D.2d 194 (2d Dept. 2002);

290 A.D.2d 177 (2002);

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);

182 A.D.2d 168 (2d Dept. 1992).

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].

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Working Knowledge of Conflict of Interest Rules is Essential

Important Concepts on Ethical Duties Of Loyalty and to Maintain Confidentiality Every lawyer, whether engaged in litigation or transactional work, must have a working knowledge of the law relating to conflicts of interest to properly deal with conflicts situations when they arise, as they very likely will. Failure to have such an understanding can result […]

Reprinted with permission from the September 27, 2004 edition of the New York Law Journal ©2004 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 Disciplinary Rules (DRs) 5-101(A) and 5-105(C) of the New York Lawyer’s Code of Professional Responsibility.
  2. See DR 5-105(D).
  3. N.Y. City Op. 2000-4 (2000).
  4. For example, compare Kassis v. Teacher’s Insurance and Annuity, 93 N.Y. 2d 611(1999) with Cummin v. Cummin, 264 A.D. 2d 637 (1st Dept. 1999).
  5. See DR 9-101(B).
  6. See DR 5-105(E); N.Y. City Op. 2003-3 (2003).
  7. See DR 5-101(A).

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Challenges in Handling Other People’s Money

Managing Client or Third-Party Funds Requires Close Study of Fiduciary Accounting Rules One of the saddest things I have encountered during nearly 20 years of practice in the field of legal ethics and professional discipline is the demise of a career in law — literally, someone’s life work — because of sloppiness, ignorance, or the inability […]

Reprinted with permission from the November 10, 2003 edition of the New York Law Journal ©2003 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.

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How to Avoid Common Ethics Problems

Small Firms and Solos Are Often Subject to Disciplinary Complaints and Malpractice Claims Every year literally thousands of New York attorneys are recipients of client disciplinary complaints, and many are also sued for malpractice. The vast majority of these respondents (to use the disciplinary parlance) are small firm and solo practitioners. Even more ominously, the numbers […]

Reprinted with permission from the October 28, 2002 edition of the New York Law Journal ©2002 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.

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Private Conduct and Professional Discipline

Attorney Joseph Masterson married Mary Masterson in 1956. Forty-one years later, he purportedly married Mingli Yang without divorcing his first wife. At the time of his second wedding, Mr. Masterson submitted an application to the city clerk falsely affirming he had never been married. The Appellate Division, Second Department, determined that Masterson had engaged in […]

Reprinted with permission from the July 23, 2002 edition of the New York Law Journal ©2002 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. Matter of Masterson, 283 A.D.2d 20, 726 N.Y.S.2d 114 (2d Dep’t 2001).
  2. In re Lamberis, 93 Ill.2d 222, 443 N.E.2d 549 (1982).
  3. Id., 443 N.E.2d at 551, 551-552.
  4. See, e.g., Matter of Cincotti, 115 A.D.2d 24, 499 N.Y.S.2d 736 (1st Dep’t 1986).
  5. See, e.g., Matter of Stockton, 188 A.D.2d 10, 593 N.Y.S.2d 79 (2d Dep’t 1993).
  6. See, e.g., Matter of Rosoff, 225 A.D.2d 197, 650 N.Y.S.2d 149 (1st Dep’t 1996).
  7. See, e.g., Matter of Hildebrand, 221 A.D.2d 85, 643 N.Y.S.2d 105 (1st Dep’t 1996).
  8. See, e.g., Matter of Wong, 275 A.D.2d 1, 710 N.Y.S.2d 57 (1st Dep’t 2000).
  9. Evidently, the categories listed in Judiciary Law 90(4)(d) reflect the Legislature’s judgment that such conduct seriously undermines the reputation and integrity of the bar and should therefore result in professional as well as criminal consequences.
  10. See, e.g. Matter of Nixon, 53 A.D.2d 178, 181-82, 385 N.Y.S.2d 305, 307 (1st Dep’t 1976).
  11. See Simon’s Code of Professional Responsibility Annotated 23 (2001 ed.) (A court may discipline an attorney [under DR 1-102(A)(3)] for misconduct outside the practice of law if the misconduct shows the person to be dishonest, untrustworthy, or otherwise unfit to practice law.)
  12. Helpful support for this proposed bright line rule can be found in the ABA Model Rules of Professional Conduct which, while not formally adopted in New York, are in effect in the vast majority of states and thus provide some guidance. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligations. Model Rule 8.4, comment 2; see, e.g., Matter of Higgins, 105 A.D.2d 462, 480 N.Y.S.2d 257 (3d Dep’t 1984) [criminal conviction for possession of a small quantity of marijuana not violative of DR 1-102(A)(3)’s moral turpitude standard]; In re Johnson, 106 Ariz. 73, 471 P.2d 269 (1970) [no discipline imposed on lawyer charged with isolated instance of assault].
  1. See Matter of Levy, 37 N.Y.2d 279, 281, 372 N.Y.S.2d 41 (1975).
  2. Vehicle and Traffic Law 1193(1)(c).
  3. DR 7-102(A)(7).
  4. See, e.g. Matter of Sylvor, 225 A.D.2d 87, 648 N.Y.S.2d 440 (1st Dep’t 1996).
  5. See, e.g., In re Lamberis, supra.
  6. See, e.g., Matter of Yao, 250 A.D.2d 221, 680 N.Y.S.2d 546 (1st Dep’t 1998).
  7. Althoff, Barrie, Big Brother is Watching: Discipline for Private Conduct, in The Professional Lawyer, ABA Center for Professional Responsibility at 81-106 (The 2000 Symposium Issue).
  1. See Vol. 16, ABA/BNA Lawyer’s Manual on Professional Conduct, 283-284 (June 7, 2000).

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Be Aware of Ethical Witness Preparation Rules

Back in 1880, the New York Court of Appeals, in In re: Eldridge,1 suspended a lawyer for writing out answers for witnesses. In its holding, the Court said that a lawyer’s duty is to extract the facts from the witness, not pour them into him; to learn what the witness does know, not teach him what […]

Reprinted with permission from the May 25, 2000 edition of the New York Law Journal ©2000 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) 82 N.Y. 161 (1880)

(2) See, e.g., Richard Wydick, The Ethics of Witness Coaching, 17 Cardozo L. Rev. 1 (1995); John S. Applegate, Witness Preparation, 68 Tex. L. Rev. 277 (1989); Note, Professional Conduct and the Preparation of Witnesses for Trial: Defining the Acceptable Limitations of Coaching 1 Geo J. Legal Ethics 389 (1987); Fred C. Zacharias and Shaun Martin, Coaching Witnesses, 87 Kentucky L. J., 1001 (1999).

(3) See: DR 6-101(A) and DR 7-101(A) of the New York Lawyer’s Code of Professional Responsibility; Model Rule (MR) 1.4(b) of the ABA Model Rules of Professional Conduct.

(4) See DR 7-102(A)(4)(6)(7); MR 1.2(d), 3.3(a)(4), 3.4(b), 8.4(b)(d).

(5) Anatomy of a Murder (Columbia Pictures, 1958)

(6) The Verdict (20th Century Fox, 1982).

(7) This case is extensively discussed in a Special Report that appeared in the ABA/BNA Lawyer’s Manual on Professional Conduct, by Joan C. Rogers, entitled Witness Preparation Memos Raise Questions About Ethical Limits, pp. 48-54, Vol. 14, No. 2 (2/18/98).

(8) One prominent ethicist observed that The Code fails to impose any significant limit on a lawyer’s conduct in preparing his own witness for trial, with the result that the propriety of the lawyer’s conduct must be defined primarily by criminal laws dealing with subornation of perjury. Bruce Green, Zealous Representation Bound: The Intersection of the Ethical Codes and the Criminal Law, 69 N.C.L. Rev. 687, 705 (1991).

(9) See D.C. Bar Formal Op. 79 (1979). Neither the nature of nor the intent underlying the lawyer’s conduct has significance so long as the substance of the testimony is not, so far as the lawyer knows or ought to know, false or misleading.

(10) With respect to discussing with a witness the applicability of law to the events in issue, the Nassau County Bar Association, in opinion 94-6 (1994), has explicitly condoned the practice of informing the client as to the applicable legal principles before getting the client’s version of the facts, as long as the lawyer in good faith does not believe that she is participating in the creation of false evidence.

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Should Lawyers Be Free to Publicly Excoriate Judges?

Copyright (c) 1997 Hofstra Law Review Association; Hal R. Lieberman “[J]unk justice.“1 “‘[R]acist.”’2 “ “[A]nti-semitism.”’3 Appellate judges are “‘the whores who became madams.”’4 “‘[S] onofabitch.”’5 Inflammatory attacks on judges and the judiciary, like the foregoing lawyers’ comments reported in the press, are becoming more common. Should such remarks be tolerated under the First Amendment, or […]

a1

A.B., University of Chicago (1964); J.D., Harvard Law School (1967). Mr. Lieberman is the Chief Counsel to the Departmental Disciplinary Committee of the New York Supreme Court, Appellate Division, First Judicial Department. The views expressed herein are his own and do not necessarily represent those of the Departmental Disciplinary Committee or the Appellate Division.

1

John Shanahan, Giuliani Calls for Firing Jurist Who Freed Killer, Star-Ledger (Newark, N.J.), Feb. 15, 1996, at 18.

2

In re Atanga, 636 N.E.2d 1253, 1256 (Ind. 1994) (finding that a lawyer accused a judge, in a widely circulated newsletter, of being “‘ignorant, insecure, and a racist”’).

3

Susan Seager, Judge Sanctions Yagman, Refers Case to State Bar, L.A. Daily J., June 6, 1991, at 1.

4

James Mills, I Have Nothing to Do with Justice, Life, Mar. 12, 1971, at 56, 66.

5

Office of Disciplinary Counsel v. Grimes, 614 N.E.2d 740, 740 (Ohio 1993) (finding that a lawyer “referred to [a judge] as a “sonofabitch,”’ which was later reported in a local newspaper).

6

See Model Code of Professional Responsibility Preface at ix (1985).

7

Model Code of Professional Responsibility DR 8-102(B) (1980).

8

Id. EC 8-6 (endnotes omitted).

9

See Model Rules of Professional Conduct Preface at viii (1992).

10

Id. Rule 8.2(a) (emphasis added).

11

In addition to the District of Columbia, 36 states follow an amended version of the ABA Rules: Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Hawaii, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Texas, Utah, Washington, West Virginia, Wisconsin, and Wyoming. Seven of the remaining 14 states still retain a version of the ABA Code (Georgia, Iowa, Maine, Massachusetts, Nebraska, Ohio, and Vermont), six have incorporated a mixture of the ABA Code and Rules (Illinois, New York, North Carolina, Oregon, Tennessee, and Virginia), and California follows neither the ABA Code nor the ABA Rules. See Stephen Gillers, Regulation of Lawyers: Problems of Law and Ethics 5 (4th ed. 1995); State Ethics Rules, Laws. Man. on Prof. Conduct (ABA/BNA) No. 165, at 01:3-:4 (May 29, 1995).

12

For example, long before the promulgation of the ABA Rules in 1983, a New York court quoted with approval a referee’s finding that a lawyer had made statements concerning a surrogate judge “‘with knowledge of their falsity and with reckless disregard of the truth.”’ Baker v. Monroe County Bar Ass’n, 311 N.Y.S.2d 70, 73 (App. Div. 1970) (per curiam) (emphasis added), aff’d, 272 N.E.2d 337 (N.Y. 1971). Similarly, “‘the rule is well settled that an attorney who engages in making false, scandalous, or other improper attacks upon a judicial officer is subject to discipline.”’ Id. at 74 (emphasis added) (quoting In re Bevans, 233 N.Y.S. 439, 443 (App. Div. 1929)).

13

See, e.g., In re Holtzman, 577 N.E.2d 30 (N.Y. 1991) (finding that an attorney’s false accusations of judicial misconduct warranted discipline under DR 1-102(A)(6) of New York’s Code of Professional Responsibility (now DR 1-102(A)(8)), which prohibits conduct that adversely reflects on a lawyer’s fitness to practice law); see also infra notes 18-24 and accompanying text.

14

Model Rules of Professional Conduct Rule 8.4(d) (1992); Model Code of Professional Responsibility DR 1-102(A)(5) (1980).

15

Model Code of Professional Responsibility DR 7-106(C)(6).

16

Model Rules of Professional Conduct Rule 3.5(c).

17

Model Code of Professional Responsibility DR 1-102(A)(6).

18

577 N.E.2d at 30.

19

See id. at 32, 33.

20

Id. at 33 (quoting New York Code of Professional Responsibility DR 1-102(A)(6) (now DR 1-102(A)(8))).

21

See id.

22

See id. at 31, 32.

23

376 U.S. 254 (1964).

24

Holtzman, 577 N.E.2d at 34.

25

597 N.Y.S.2d 370 (App. Div. 1993).

26

Timothy Clifford, Hurt Not Married to Dancer: Court, Newsday (New York City), Oct. 4, 1989, at 4; see also Vivienne Walt, Jennings’ Lawyer Is on the Hot Seat, Newsday (New York City), Oct. 12, 1989, at 31; Golub, 597 N.Y.S.2d at 371. The incident arose after New York Supreme Court Justice Jacqueline Silbermann entered judgment for the defendant, movie star William Hurt, in Jennings v. Hurt, No. 9736/88, 1989 N.Y. Misc. LEXIS 868 (Sup. Ct. Oct. 3, 1989), aff’d, 554 N.Y.S.2d 220 (App. Div. 1990). See also Hal R. Lieberman, Lawyer Incivility Is Also Unethical, N.Y. L.J., Nov. 15, 1993, at 1.

27

Such public denunciations are not only made by attorneys; government officials have also been involved. The most striking recent example is the uproar following Judge Harold Baer, Jr.’s suppression of drug evidence in United States v. Bayless, 913 F. Supp. 232 (S.D.N.Y. 1996), which he subsequently reversed after an explosive public outcry in United States v. Bayless, 921 F. Supp. 211 (S.D.N.Y. 1996). See generally Linda Greenhouse, Rehnquist Joins Fray on Rulings, Defending Judicial Independence, N.Y. Times, Apr. 10, 1996, at A1; Alison Mitchell, Clinton Pressing Judge to Relent: President Wants a Reversal of Drug Evidence Ruling, N.Y. Times, Mar. 22, 1996, at A1; Henry J. Reske, Questions of Independence: Criticism, Political Matters Heat Up Judges Conference, A.B.A. J., June 1996, at 110.

28

182 N.Y.S. 653 (App. Div. 1920).

29

See id. at 655.

30

Id.

31

See id. at 655, 657.

32

34 N.Y.S.2d 810 (App. Div. 1942).

33

Id. at 813.

34

Id.; see also Baker v. Monroe County Bar Ass’n, 311 N.Y.S.2d 70, 73 (App. Div. 1970) (per curiam) (suspending an attorney who made a statement to a county bar association in which he referred to “crooked judges” and attacked the integrity of the surrogate’s court), aff’d, 272 N.E.2d 337 (N.Y. 1971).

35

301 N.E.2d 426 (N.Y. 1973), rev’g per curiam 333 N.Y.S.2d 863 (App. Div. 1972).

36

Mills, supra note 4, at 56.

37

Id. at 66.

38

See Erdmann, 301 N.E.2d at 427.

39

Id.

40

See discussion infra Part III.

41

12 F.3d 861 (9th Cir. 1993).

42

See id. at 864.

43

Id. at 866.

44

See id.

45

See id. at 866, 867.

46

Id. at 867 (quoting In re Westfall, 808 S.W.2d 829, 837 (Mo. 1991) (en banc)).

47

55 F.3d 1430 (9th Cir. 1995).

48

“[Attorney disciplinary] proceedings are governed by an objective standard, pursuant to which the court must determine “what the reasonable attorney, considered in light of all his professional functions, would do in the same or similar circumstances.”’ Id. at 1437 (quoting Sandlin, 12 F.3d at 867).

49

Id. at 1434.

50

See id. at 1441-42. A careful reading of Yagman would support discipline in many cases because, as the court held, even statements of opinion can be the basis for sanctions if such opinion can “reasonably be understood as declaring or implying actual facts capable of being proved true or false.” Id. at 1439. The court illustrated this point by providing the following example:

The statement, “I think Jones is an alcoholic,” for example, is an expression of opinion based on implied facts, because the statement “gives rise to the inference that there are undisclosed facts that justify the forming of the opinion.” Readers of this statement will reasonably understand the author to be implying he knows facts supporting his view–e.g., that Jones stops at a bar every night after work and has three martinis. If the speaker has no such factual basis for his assertion, the statement is actionable, even though phrased in terms of the author’s personal belief.

Id. (emphasis added) (citations omitted).

51

See id. at 1438, 1441.

52

70 F.3d 483 (7th Cir. 1995), cert. denied, 116 S. Ct. 1854 (1996).

53

Id. at 485.

54

See id. at 487.

55

The court noted that “[e]ven a statement cast in the form of an opinion (“I think that Judge X is dishonest”) implies a factual basis, and the lack of support for that implied factual assertion may be a proper basis for a penalty.” Id.

56

Id. (quoting Garrison v. Louisiana, 379 U.S. 64, 75 (1964)); accord In re Evans, 801 F.2d 703, 706 (4th Cir. 1986); In re Grimes, 364 F.2d 654, 656 (10th Cir. 1966).

Compare Palmisano to the reasoning forwarded by the court in United States v. Brown, 72 F.3d 25 (5th Cir. 1995). In Brown, the court ruled that a lawyer’s motion for a new trial, which included claims that the trial judge’s gestures, facial expressions, and comments showed bias against the lawyer’s client, did not warrant suspension, see id. at 27, 28, under ethical rules prohibiting “remarks about a judge that are false or made with a reckless disregard as to their truth or falsity.” Id. at 27. The court concluded that the lawyer’s comments were made in the context of the judicial process and that lawyers “should be free to challenge…a court’s perceived partiality without the court misconstruing such a challenge as an assault on the integrity of the court.” Id. at 29.

57

See In re Riley, 691 P.2d 695, 704 (Ariz. 1984) (in banc) (public censure; lawyer’s statement that the “‘state simply doesn’t get a fair trial in [that judge’s] court”’); Florida Bar v. Kleinfeld, 648 So. 2d 698, 701 (Fla. 1994) (three year suspension; lawyer impugned the “fairness and honesty of a judge for the sole purpose of shopping for a more favorable forum”); In re Jafree, 444 N.E.2d 143, 149 (Ill. 1982) (disbarment; lawyer made “numerous scurrilous and defamatory statements about the judiciary, and certain judges”); In re Atanga, 636 N.E.2d 1253, 1256 (Ind. 1994) (30 day suspension; lawyer accused a judge, in a widely circulated newsletter, of being “‘ignorant, insecure, and a racist’ and “motivated by political ambition”’); In re Frerichs, 238 N.W.2d 764, 765 (Iowa 1976) (public admonishment; lawyer’s statement, in a petition for rehearing, that the court was “ “willfully avoiding the substantial constitutional issues”’ in the case); Kentucky Bar Ass’n v. Heleringer, 602 S.W.2d 165, 166 (Ky. 1980) (public reprimand; lawyer characterized a judge’s decision as “‘highly unethical and grossly unfair”’ at a press conference); Louisiana State Bar Ass’n v. Karst, 428 So. 2d 406, 408 (La. 1983) (one year suspension; lawyer’s public accusation that a judge was “ “dishonest, corrupt,”’ and was either “‘blackmailed”’ or “ “accept[ed] bribes to influence his decision”’); In re Raggio, 487 P.2d 499, 500 (Nev. 1971) (per curiam) (public reprimand; lawyer, a district attorney who was a potential candidate for governor or U.S. senator, characterized a Nevada Supreme Court decision as “‘shocking and outrageous,”’ and as “‘judicial legislation at its very worst”’); Office of Disciplinary Counsel v. Grimes, 614 N.E.2d 740, 740 (Ohio 1993) (public reprimand; lawyer, while speaking with a reporter, “referred to [a judge] as a “sonofabitch”’); In re Lacey, 283 N.W.2d 250, 251 (S.D. 1979) (public censure; lawyer remarked to the press that “‘state courts were incompetent and sometimes downright crooked, Judge Adams excepted”’). See generally W.E. Shipley, Annotation, Attorney’s Criticism of Judicial Acts as Ground of Disciplinary Action, 12 A.L.R.3d 1408 (1967).

58

766 P.2d 958 (Okla. 1988).

59

Id. at 961.

60

Id. at 969.

61

See id. at 966-69.

62

Id. at 968.

63

Id.

64

Going one step further, concurring Justice Opala urged for the adoption of a completely subjective test: “Even if … the Bar had followed up with a formal and particularized offer to prove that the respondent’s remarks were false in fact, no discipline would be imposable here. Respondent’s constitutional freedom of speech does not depend on the truth of its content.” Id. at 970.

65

For example, a lawyer, unhappy with a judge’s decision, alleged that there was a conspiracy between the judge and the opposing party. See In re Disciplinary Action Against Graham, 453 N.W.2d 313, 318 & n.3 (Minn. 1990). Despite the lawyer’s apparently genuine belief that his statement was true, he had no facts to support his accusation and was suspended for 60 days; the court specifically articulated an objective test. See id. at 322, 324.

In a similar ruling, a lawyer was disciplined for asserting that the judge had “‘made up his mind”’ before hearing the case. In re Westfall, 808 S.W.2d 829, 832 (Mo. 1991) (en banc). The court rejected the lawyer’s claim that his actionable statement was only an opinion, not a statement of fact, calling that argument an “artificial dichotomy” and noting that a lawyer cannot screen himself from the disciplinary rule by adding “I believe” to the beginning of otherwise offensive comments. Id. at 833.

66

408 S.E.2d 274 (W. Va. 1991).

67

See id. at 283-84.

68

Id. at 285.

69

See Model Code of Judicial Conduct Canon 3(B)(9) (1990).

70

Model Code of Professional Responsibility EC 8-6 (1980).

71

Model Rules of Professional Conduct Rule 8.2 cmt. (1992).

 

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