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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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    Is New York’s Disciplinary System Truly Broken?

    by Hal R. Lieberman
    Published in New York Law Journal, Jul 16, 2014
  • General
  • Procedural

    • 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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    The ‘Galasso’ Case and the Duty of Supervision

    by Hal R. Lieberman and Katy Lachter
    Published in New York Law Journal, May 30, 2012
  • Miscellaneous
  • Procedural
  • Substantive

    • On Feb. 21, 2012, a unanimous panel of the Appellate Division, Second Department, suspended a Long Island attorney, Peter J. Galasso of Galasso, Langione, Catterson & LoFrumento, for two years due to his failure to adequately supervise his brother, who stole $4 million from the firm’s client escrow account.1 The decision has since garnered a […]

    Reprinted with permission from the May 30, 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. Matter of Galasso, 94 A.D.3d 30 (2d Dept. 2012).
    1. See Karger, the Powers of the New York Court of Appeals, Scope of Review, §2(b), p. 10 (3d ed. 1997). The Court of Appeals generally is a court of limited jurisdiction. That jurisdiction is further limited with respect to disciplinary matters due to New York’s unique Constitutional scheme, in which the Appellate Divisions are designated courts of original jurisdiction for disciplinary cases. As a matter of comity, the Court of Appeals rarely hears discipline matters. Those cases it does hear involve very significant questions of law or of due process.
    2. Affirmation of Matthew Lee-Renert for the Grievance Committee for the Ninth Judicial District, Opposing Application for Leave to Appeal and for Stay of Enforcement.
    3. Matter of Linn, 200 A.D.2d 4 (2d Dept. 1994); Matter of Sykes, 150 A.D.2d 126 (2d Dept. 1989); Matter of Pollack, 142 A.D.2d 386 (1st Dept. 1989); Matter of Ponzini, 259 A.D.2d 142 (2d Dept. 1999), modified on reargument,  268 A.D.2d 478 (2d Dept. 2000).
    4. Matter of Linn, 200 A.D.2d at 5-6.
    5. Matter of Sykes, 150 A.D.2d at 127.
    6. Matter of Pollack, 142 A.D.2d at 389.
    7. Matter of Ponzini, 259 A.D.2d at 148, modified on reargument, 268 A.D.2d 478.
    8. Affirmation of Grace D. Moran, attorney for Peter Galasso, in Support of Motion for Leave to Appeal, ¶27.
    9. Id. ¶28.
    10. Affirmation of Matthew Lee-Renert, supra note 3, ¶26.
    11. Id. ¶27.
    12. Id. ¶28
    13. Id. ¶29.
    14. Matter of Gayle, NYLJ, Feb. 29, 2012, page 2, col 3.
    15. Matter of Tambini, 77 A.D.3d 143, 149 (2d Dept. 2010); Matter of Iaquinta-Snigur, 30 A.D.3d 67, 76 (2d Dept. 2006);  Matter of Ryan, 264 A.D.2d 128, 135 (2d Dept. 2000).
    16. Matter of Galasso, supra note 1.
    17. Affirmation of Matthew Lee-Renert, supra note 3, ¶9.

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    New York’s Lawyer Disciplinary System; Is It Fair?

    by Hal R. Lieberman
    Published in New York Law Journal, May 1, 2010
  • General
  • Procedural

    • 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

    by Hal R. Lieberman
    Published in New York Law Journal, July 23, 2002
  • General
  • Miscellaneous
  • Procedural
  • Substantive

    • 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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