Archive | Fifth Amendment in Attorney Discipline

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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