Archive | Procedural

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 […]

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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 […]

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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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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 […]

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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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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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The ‘Galasso’ Case and the Duty of Supervision

On Feb. 21, 2012, a unanimous panel of the Appellate Division, Second Department, suspended a Long Island attorney, Peter J. Galasso of Galasso, Langione, Catterson & LoFrumento, for two years due to his failure to adequately supervise his brother, who stole $4 million from the firm’s client escrow account.1 The decision has since garnered a […]

Reprinted with permission from the May 30, 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. Matter of Galasso, 94 A.D.3d 30 (2d Dept. 2012).
  1. See Karger, the Powers of the New York Court of Appeals, Scope of Review, §2(b), p. 10 (3d ed. 1997). The Court of Appeals generally is a court of limited jurisdiction. That jurisdiction is further limited with respect to disciplinary matters due to New York’s unique Constitutional scheme, in which the Appellate Divisions are designated courts of original jurisdiction for disciplinary cases. As a matter of comity, the Court of Appeals rarely hears discipline matters. Those cases it does hear involve very significant questions of law or of due process.
  2. Affirmation of Matthew Lee-Renert for the Grievance Committee for the Ninth Judicial District, Opposing Application for Leave to Appeal and for Stay of Enforcement.
  3. Matter of Linn, 200 A.D.2d 4 (2d Dept. 1994); Matter of Sykes, 150 A.D.2d 126 (2d Dept. 1989); Matter of Pollack, 142 A.D.2d 386 (1st Dept. 1989); Matter of Ponzini, 259 A.D.2d 142 (2d Dept. 1999), modified on reargument,  268 A.D.2d 478 (2d Dept. 2000).
  4. Matter of Linn, 200 A.D.2d at 5-6.
  5. Matter of Sykes, 150 A.D.2d at 127.
  6. Matter of Pollack, 142 A.D.2d at 389.
  7. Matter of Ponzini, 259 A.D.2d at 148, modified on reargument, 268 A.D.2d 478.
  8. Affirmation of Grace D. Moran, attorney for Peter Galasso, in Support of Motion for Leave to Appeal, ¶27.
  9. Id. ¶28.
  10. Affirmation of Matthew Lee-Renert, supra note 3, ¶26.
  11. Id. ¶27.
  12. Id. ¶28
  13. Id. ¶29.
  14. Matter of Gayle, NYLJ, Feb. 29, 2012, page 2, col 3.
  15. Matter of Tambini, 77 A.D.3d 143, 149 (2d Dept. 2010); Matter of Iaquinta-Snigur, 30 A.D.3d 67, 76 (2d Dept. 2006)Matter of Ryan, 264 A.D.2d 128, 135 (2d Dept. 2000).
  16. Matter of Galasso, supra note 1.
  17. Affirmation of Matthew Lee-Renert, supra note 3, ¶9.

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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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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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