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‘Dunn’ : Collateral Estoppel and Attorney Discipline

by Hal R. Lieberman
Published in New York Law Journal, June 16, 2015
  • Appellate Review
  • Collateral Estoppel
  • Disciplinary and Grievance Complaints
  • Attorney Disciplinary Proceedings

    • 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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    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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    Attorney Discipline System: Does it Meet ‘Due Process’ Requirements?

    by Hal R. Lieberman
    Published in New York Law Journal, August 31, 2012
  • General
  • Procedural

    • In a previous column,1 we focused on the historical constitutional development of due process rights in attorney discipline cases, and briefly highlighted the relatively few New York cases addressing procedural due process rights accorded to New York lawyers facing disciplinary charges. This article attempts to drill down by discussing several particular aspects of New York’s […]

    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’?” NYLJ, April 4, 2012.
    2. 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.
    3. 67 N.Y.2d 440 (1986).
    4. Id.
    5. 79 N.Y.2d 520 (1992).
    6. Id. at 525 (citations omitted).
    7. 22 N.Y.C.R.R. §603.4(e)(2).
    8. In any case, an interimly suspended attorney would be well advised to request a prompt post-suspension hearing, if grounds exist, and in that regard should fully cooperate with the disciplinary investigation if prior non-cooperation contributed to the interim suspension.
    9. 118 A.D.2d 15 (1st Dept. 1986).
    1. 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 MacKenzie, 32 A.D.3d 189 (2d Dept. 2006); Matter of Klarer, 66 A.D.3d 247 (2d Dept. 2009); Matter of Capoccia, 272 A.D.2d 838 (3d Dept. 2000).
    2. Matter of Schwartz, 24 N.Y.2d 65 (1969).
    3. Id.
    4. See Hal R. Lieberman, “Use of Collateral Estoppel in Attorney Disciplinary Proceedings,” NYLJ, July 27, 1998; see also Commissioner of the State Insurance Fund v. Low, 3 NY2d 590 (1958) (describing collateral estoppel as “essentially a rule of justice and fairness,” but one that can also be “elusive and difficult to apply”).
    5. Matter of Capoccia, 59 N.Y.2d 549 (1983); Matter of Friedman, 196 A.D.2d 280 (1st Dept. 1994).
    6. 390 U.S. 544 (1968).
    7. The respondent in Matter of Friedman petitioned the U.S. Supreme Court for a writ of certiorari, which the Court denied on Oct. 3, 1994. 513 U.S. 820 (1994).
    8. Model Enforcement Rule 18.3.
    9. See N.Y. A.P.A. §306(1).
    10. 10 N.Y.3d 669 (2008).
    11. Model Enforcement Rule 18.2.

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