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, in substantial part, on the fact-finder’s assessment of credibility. The following summarizes the few avenues of appellate review for attorneys seeking to overturn or modify adverse disciplinary determinations.
Administrative Review
In each of the four departments, formal disciplinary proceedings, entailing full evidentiary hearings, are conducted by court-appointed special referees.1 The referees then issue a written report, generally within 30 days of post-hearing submissions, setting forth findings of fact, conclusions of law and, at least in the First Department, a recommendation as to sanction.2
Only the First Department has a procedure for intermediate administrative review of a referee’s report.3 Such review takes place before a hearing panel, comprised of five members of the Departmental Disciplinary Committee (at least one of whom is a layperson). The hearing panel’s task is to issue a determination following oral argument and submission of briefs by the parties. No new evidence may be offered and oral argument is not transcribed. The hearing panel can confirm, modify, or reverse factual findings or legal conclusions of the referee, and may recommend a different level of discipline.4 The referee’s report and the hearing panel’s determination are then forwarded to the Appellate Division for final disposition, as discussed hereafter.5
Appellate Division Review
The four Appellate Divisions are, for practical purposes, the final arbiters of discipline in New York. While in principle those courts review every disciplinary administrative decision de novo, in practice they rely heavily on the findings below and accord special deference to findings based on the credibility of the lawyer and/or other witnesses.6
The Appellate Divisions generally exercise broad discretion when it comes to sanction. In fact, the Second Department has a longstanding tradition of not receiving any comments on sanction by the referee or committee staff, which determination is left entirely to the discretion of the court.
In each of the departments, a lawyer subject to discipline has the right to submit a written statement or memorandum setting forth the lawyer’s view of the facts, legal conclusions, and an appropriate sanction. In any such submission, the lawyer will also want to present a list of judicially recognized and applicable mitigating circumstances (presumably, made part of the record below), as well as any case law with respect to dispositions concerning similarly situated New York lawyers (out-of-state cases are for the most part unhelpful).
The procedural vehicle for a lawyer’s written submission to the court is a memorandum submitted in “opposition” to a committee’s “motion to confirm” the findings and recommendations of a referee (and hearing panel in the First Department). The court will then review the parties’ submissions and the entire record below before issuing an order finally deciding the matter.
A procedural oddity in New York, which is partly a result of our decentralized attorney disciplinary process, is the inconsistent opportunity to appear and present oral argument to an Appellate Division prior to issuance of a final disciplinary order. Under the local rules of the Third and Fourth departments, oral argument is available, and, in the Fourth Department, the lawyer’s appearance before the court is actually required in serious cases.7
But in the First and Second departments, apparently by tradition or due to the courts’ perception that they are simply too busy, oral argument is not permitted. The fact that a lawyer who may lose his or her law license has no right to appear in person before the tribunal empowered to take it away, whereas the same courts allow oral argument in routine commercial disputes, or other licensing cases, is troubling, and a number of years ago led one distinguished jurist to comment critically about this issue in the context of a constitutional challenge to New York’s disciplinary system.8
Court of Appeals Review
Review of Appellate Division disciplinary orders by the New York Court of Appeals is circumscribed and rare. Pursuant to Judiciary Law, section 90(8), the Court of Appeals may only review “issues of law,” subject to the provisions of the New York Constitution governing Court of Appeals jurisdiction.9 Thus, an appeal may be taken as of right from a judgment or order of an Appellate Division that finally determines an action or proceeding, but only if construction of a provision of the New York Constitution or U.S. Constitution is directly implicated, or where there is a dissent from one or more justices of an Appellate Division.10
Otherwise, and far more commonly, pursuant to CPLR §5602(a)(1), an appeal may be taken to the Court of Appeals by permission of either the Appellate Division or the Court of Appeals, and only from an order of an Appellate Division that finally determines the matter and is not appealable as of right.11 One cannot seek leave simultaneously from an Appellate Division and the Court of Appeals.12 Lawyers seeking leave to appeal must conform their application to the procedures laid out in the local rules of the Appellate Division from which permission is requested, or pursuant to the rules of the Court of Appeals regarding leave applications, and must make any such application within 30 days of entry of the final order.
Making a leave application, or perfecting an appeal to the Court of Appeals, does not, of itself, suspend the operation, or stay the execution, of an order of suspension or disbarment. To do that, a lawyer seeking permission to appeal must move by order to show cause, specifically requesting a stay and setting forth with particularity why a stay will serve the ends of justice (i.e., show irreparable harm and the likelihood of success on the merits of the appeal).
The Court of Appeals does not have the authority to review facts unless there has been an abuse of discretion as a matter of law.13 Nor will it consider arguments concerning the severity of a disciplinary sanction unless the sanction constitutes an abuse of discretion as a matter of law.14 (To the author’s knowledge, the Court of Appeals has never modified or reversed a lower court’s finding of fact or disciplinary sanction.)
Though the Court of Appeals rarely accepts attorney disciplinary appeals, when it does so the court has a rich history of deciding cases involving, inter alia, important procedural due process rights,15 the use of evidence in the disciplinary proceedings,16 clarification of the rights of lawyers convicted of crimes,17 and, most recently, interpretation of an ethics rule concerning the duty to supervise law firm employees.18
The U.S. Supreme Court
Constitutionally, the next place an aggrieved lawyer can go, following denial of an application for leave to appeal to the Court of Appeals, or from an adverse determination of that court, is directly to the U.S. Supreme Court via a petition for a writ of certiorari. As one can imagine, the Supreme Court rarely grants certiorari in attorney discipline cases.
Some notable exceptions are: Spevack v. Klein, 385 U.S. 511 (1967) [the refusal of an attorney to produce demanded financial records, or to testify at judicial inquiry, on the basis that production of records and his testimony would tend to incriminate him in violation of the Fifth Amendment, was not of itself a ground for discipline]; Shapero v. Kentucky Bar Ass’n, 486 U.S. 466 (1988) [Kentucky could not, consistent with the First and 14th amendments, categorically prohibit lawyers from soliciting legal business for pecuniary gain by sending truthful and nondeceptive letters to potential clients known to face particular legal problems]; In re Ruffalo, 390 U.S. 544 (1968) [where an attorney in a state disciplinary proceeding had no notice that his employment of a “certain” person would be considered a disciplinary offense until after both he and that person had testified at length on all material facts pertaining to that phase of case, the absence of fair notice as to the reach of grievance procedure and the precise nature of the charges deprived that attorney of procedural due process, even though he was thereafter given several months to respond to the new charge]; and, Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) [held: (1) as interpreted by the Nevada Supreme Court, the rule prohibiting certain statements to the press was void for vagueness; and, (2) the “substantial likelihood of material prejudice” test applied by Nevada satisfied the First Amendment].
The common thread in each of these cases is the invocation of a core constitutional right, such as the First or Fifth Amendment, by a lawyer facing professional discipline. While the Supreme Court has also entertained a string of advertising and solicitation cases over the years, those cases are generally instituted as plenary actions in the federal court system.
Federal Court Review
Many lawyers incorrectly assume that when a state disciplinary action is proceeding badly, or ends unhappily, a remedy lies in federal court. Not so. Collateral attacks on state disciplinary proceedings are essentially precluded by two well-established doctrines emanating from Supreme Court jurisprudence. The first is abstention. In Younger v. Harris,19 and successive cases, the Supreme Court has espoused a strong federal policy against federal court interference with pending state disciplinary proceedings absent extraordinary circumstances. The basis for Younger abstention is the notion of “comity,” which includes “a proper respect for state court functions.”20
Thus, where important state interests are concerned, a federal court should abstain “unless state law clearly bars the interposition of constitutional claims.”21 The Supreme Court has explicitly applied Younger abstention to bar disciplinary proceedings.22 Accordingly, federal district courts will invariably abstain—by granting a motion to dismiss—from considering any action that tries to enjoin or otherwise interfere with an ongoing state disciplinary proceeding.23
Second, and relatedly, the Rooker-Feldman doctrine, named for two Supreme Court cases24 interpreting federal subject matter jurisdiction under 28 U.S.C. §1257, expressly limits review of state disciplinary proceedings, once they are over, to direct review by the Supreme Court via a petition for a writ of certiorari.25 Thus, a federal district court will nearly always grant a motion to dismiss an action by an aggrieved lawyer seeking review of a state court disciplinary order.
Conclusion
New York lawyers wishing to appeal from adverse disciplinary decisions of referees (or hearing panels) should understand that appellate remedies, while they exist, are limited and not often likely to result in a reversal or substantial modification of a negative determination. Thus, and in the author’s experience, the crucial aspect of any disciplinary proceeding is the fact-finding stage, i.e., the evidentiary hearing. If the underlying facts of misconduct are established initially, then the lawyer’s best hope is to marshal mitigating evidence and present that information in an effective submission to the Appellate Division, along with relevant case law pertaining to similar misconduct. There is little likelihood of an appellate remedy beyond Appellate Division review.
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.
- See 22 NYCRR §605.12(f)(1), 22 NYCRR §691.5-a(a), 22 NYCRR §806.5, and 22 NYCRR §1022.20(d)(1).
- See 22 NYCRR §605.13(q)(1).
- See 22 NYCRR §605.14.
- 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.
- 22 NYCRR §605.15(e)(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”).
- 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”).
- 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.
- 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).
- Id.CPLR 5602(a)(1).
- CPLR 5602(a)(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.
- 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).
- Id.
- 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).
- 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).
- 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).
- 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).
- Younger v. Harris, 401 U.S. 37 (1971).
- Id. at 44.
- Moore v. Sims, 442 U.S. 415, 426 (1975).
- Middlesex County Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423 (1982).
- 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).
- Rooker v. Fidelity Trust, 263 U.S. 413 (1923) and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
- 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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