Archive | Private v. Public Discipline

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: 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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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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