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Report on Statewide Attorney Discipline: Uniformity and Fairness

by Hal R. Lieberman
Published in New York Law Journal,
  • Attorney Disciplinary Proceedings
  • Attorney Discipline Defense
  • Due Process
  • Sanctions

    • 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 […]

    Reprinted with permission from the “October 23, 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. 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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    Recent Developments in Disciplinary Case Law

    by Hal R. Lieberman
    Published in New York Law Journal, November 10, 2014
  • General
  • Procedural
  • Substantive

    • 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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    Should Disqualification Lead to Discipline?

    by Hal R. Lieberman
    Published in New York Law Journal, April 4, 2014
  • General
  • Miscellaneous
  • Substantive

    • In New York and elsewhere, attorney discipline has been imposed rarely, sporadically, and seemingly randomly, after lawyers or their firms have been disqualified in civil or criminal litigation due to a conflict of interest or for other infractions. What factors should trigger a subsequent disciplinary investigation? Does disqualification for a conflict of interest or other […]

    Reprinted with permission from the April 4, 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. See, e.g., Universal City Studios v. Reimerdes, supra, p. 2.
    1. “Issue” conflicts arise if advocating a legal position on behalf of one client creates precedent adverse to the interests of another client in a different case. See, N.Y. R.P.C. 1.7, comment 24. See, e.g., United States v. Binday, 2013 WL 1104258 (S.D.N.Y. March 14, 2013).
    1. The “hot potato” doctrine provides that a lawyer may not drop an existing client like a hot potato in order to take on a new matter adverse to the interests of the existing client absent informed consent. See, e.g., Stratagem Development Corp. v. Heron Int’l N.V., 756 F.Supp. 789 (S.D.N.Y. 1991).
    1. The “advocate-witness” rule, N.Y. R.P.C. 3.7, concerns combining the roles of advocate and witness wherein the trier of fact may be confused or misled by the lawyer’s serving in both capacities. See, e.g., Skiff-Murray v. Murray, 3 A.D.3d 610 (3d Dept. 2004).
    1. 98 F.Supp.2d 449 (S.D.N.Y. 2000).
    1. Id. at 451; see Cinema 5 Ltd. v. Cinerama, Inc., 528 F.2d 1384 (2d Cir. 1976).
    1. Id. at 455.
    1. Id. at 456.
    1. 84 N.Y.2d 562 (1994).
    1. 281 A.D.2d 23 (1st Dept. 2001).
    1. Harvard Law Review, Developments in the Law: “Conflicts of Interest in the Legal Profession,” Vol. 94, No. 6, p. 1501 (April 1981), citing Maryland State Bar Ass’n v. Agnew, 271 Md. 543, 549, 318 A.2d 811, 814 (1974) (other citations omitted).

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    Lawyers Who Commit Crimes: Disciplinary Consequences

    by Hal R. Lieberman
    Published in New York Law Journal, August 22, 2013
  • General
  • Procedural

    • 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 […]

    Reprinted with permission from the August 22, 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.

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    Appellate Review of Disciplinary Decisions

    by Hal R. Lieberman
    Published in New York Law Journal, May 29, 2013
  • General
  • Procedural

    • 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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    Q & A With Hal R. Lieberman

    by Kris Fischer
    Published in New York Law Journal, March 25, 2011
  • General
  • Procedural
  • Substantive

    • 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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    Be Aware of Ethical Witness Preparation Rules

    by Hal R. Lieberman
    Published in New York Law Journal, May 25, 2000
  • General
  • Substantive

    • Back in 1880, the New York Court of Appeals, in In re: Eldridge,1 suspended a lawyer for writing out answers for witnesses. In its holding, the Court said that a lawyer’s duty is to extract the facts from the witness, not pour them into him; to learn what the witness does know, not teach him what […]

    Reprinted with permission from the May 25, 2000 edition of the New York Law Journal ©2000 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) 82 N.Y. 161 (1880)

    (2) See, e.g., Richard Wydick, The Ethics of Witness Coaching, 17 Cardozo L. Rev. 1 (1995); John S. Applegate, Witness Preparation, 68 Tex. L. Rev. 277 (1989); Note, Professional Conduct and the Preparation of Witnesses for Trial: Defining the Acceptable Limitations of Coaching 1 Geo J. Legal Ethics 389 (1987); Fred C. Zacharias and Shaun Martin, Coaching Witnesses, 87 Kentucky L. J., 1001 (1999).

    (3) See: DR 6-101(A) and DR 7-101(A) of the New York Lawyer’s Code of Professional Responsibility; Model Rule (MR) 1.4(b) of the ABA Model Rules of Professional Conduct.

    (4) See DR 7-102(A)(4)(6)(7); MR 1.2(d), 3.3(a)(4), 3.4(b), 8.4(b)(d).

    (5) Anatomy of a Murder (Columbia Pictures, 1958)

    (6) The Verdict (20th Century Fox, 1982).

    (7) This case is extensively discussed in a Special Report that appeared in the ABA/BNA Lawyer’s Manual on Professional Conduct, by Joan C. Rogers, entitled Witness Preparation Memos Raise Questions About Ethical Limits, pp. 48-54, Vol. 14, No. 2 (2/18/98).

    (8) One prominent ethicist observed that The Code fails to impose any significant limit on a lawyer’s conduct in preparing his own witness for trial, with the result that the propriety of the lawyer’s conduct must be defined primarily by criminal laws dealing with subornation of perjury. Bruce Green, Zealous Representation Bound: The Intersection of the Ethical Codes and the Criminal Law, 69 N.C.L. Rev. 687, 705 (1991).

    (9) See D.C. Bar Formal Op. 79 (1979). Neither the nature of nor the intent underlying the lawyer’s conduct has significance so long as the substance of the testimony is not, so far as the lawyer knows or ought to know, false or misleading.

    (10) With respect to discussing with a witness the applicability of law to the events in issue, the Nassau County Bar Association, in opinion 94-6 (1994), has explicitly condoned the practice of informing the client as to the applicable legal principles before getting the client’s version of the facts, as long as the lawyer in good faith does not believe that she is participating in the creation of false evidence.

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