Archive | Attorney Disciplinary Proceedings

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”). […]

Reprinted with permission from the April 1 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. 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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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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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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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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