Archive | Disciplinary and Grievance Complaints

‘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 […]

Reprinted with permission from the February 4, 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, “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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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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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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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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