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Archive | Private Conduct and Discipline

Discipline for ‘Private Conduct’: Rationale and Recent Trends

by Hal R. Lieberman
Published in New York Law Journal, February 19, 2013
  • General
  • Substantive

    • Lawyers must act ethically 24/7. That is, we are held to a consistent standard of integrity that exceeds mere adherence to professional norms in our legal lives. We are also expected to behave ethically in our private business affairs. When that does not happen, judicial authorities have repeatedly, and sometimes severely, disciplined lawyers for peccadilloes […]

    Reprinted with permission from the February 19, 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. Hal R. Lieberman and Richard Supple, “Private Conduct and Professional Discipline,” NYLJ, July 23, 2002.
    1. Judiciary Law §90(4)(a).
    1. Judiciary Law §90(4)(d).
    1. See, e.g., Matter of Silberman, 83 AD3d 95 (1st Dept. 2011) (six-year suspension for possessing and engaging in distribution of illegal narcotics); Matter of Goldman, 71 AD3d 9 (1st Dept. 2009) (one-year suspension for attorney who pleaded guilty to one count of failing to file New York State tax return, where attorney failed to file both state and federal tax returns for seven years); Matter of Clarey, 55 A.D.3d 209 (2d Dept. 2008) (one-year suspension for attorney who pleaded guilty to operating a motor vehicle under the influence of alcohol and leaving the scene of an accident); Matter of Felsen, 40 A.D.3d 1257 (3d Dept. 2007) (lawyer disbarred after being convicted out of state of forging a physician’s signature to a prescription form in the name of a fictitious person in order to obtain a pain killer at a pharmacy; Matter of Ugweches, 69 AD3d 125 (1st Dept. 2009) (attorney automatically disbarred upon his conviction for the class D felony of second-degree assault).
    1. Former EC 1-5 provided as follows:

    A lawyer should be temperate and dignified, and should refrain from all illegal and morally reprehensible conduct. Because of the lawyer’s position in society, even minor violations of law by a lawyer may tend to lessen public confidence in the legal profession.

    When the new Rules of Professional Conduct took effect on April 1, 2009, Comment [2] to Rule 8.4, as originally adopted by the New York State Bar Association Committee on Standards of Attorney Conduct (COSAC) and the state bar, stated in pertinent part:

    [2] …Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for illegal conduct that indicates lack of those characteristics relevant to law practice. Violations involving violence, dishonesty, fraud, breach of trust, or serious interference with the administration of justice are illustrative of illegal conduct that reflects adversely on fitness to practice law. Other types of illegal conduct may or may not fall into that category, depending upon the particular circumstances.

    Referring to former EC 1-5 (and apparently responding to critics of Comment [2]), COSAC’s 2011 Report to the House of Delegates said:

    Although COSAC believes there is some illegal conduct that does not reflect adversely on a lawyer’s honesty, trustworthiness or fitness as a lawyer, there is an argument, as presented in the former EC, that even minor transgressions may tend to lessen public confidence in the legal profession and thereby draw into question a lawyer’s fitness as a lawyer.

    Thus, COSAC’s 2011 Report concluded that it was “inappropriate for the Comment to take a bright-line position on an arguable question, particularly one that represents a significant shift from a former EC that is not supported by a change in the Rule,” and that any change in ethical standards might “be better left to the guidance of ethics committees in particular fact situations.”

    The amended version of Comment [2] to Rule 8.4 now reads, in full, as follows:

    [2] Many kinds of illegal conduct reflect adversely on fitness to practice law. Illegal conduct involving violence, dishonesty, fraud, breach of trust, or serious interference with the administration of justice is illustrative of conduct that reflects adversely on fitness to practice law. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.

    1. In re Dear, 91 A.D.3d 111 (1st Dept. 2011) (six-month suspension).
    1. In re Sibley, 61 A.D.3d 85 (4th Dept. 2009) (imposition of reciprocal discipline upon attorney suspended in Florida for three years).
    1. Matter of Gurvey, —N.Y.S.2d—, 2012 WL 6013093 (1st Dept. 2012) (six-month suspension; although the court acknowledged that respondent was not acting as an attorney at the time of the subject misconduct, it affirmed that it has “disciplined attorneys for conduct that is ‘both in and out of their profession so as to ensure the public’s right to representation by attorneys who are worthy of trust'”).
    1. In re Solny, 96 A.D.3d 76 (1st Dept. 2012) (two-year suspension although respondent was not acting in his professional capacity as an attorney, but rather as the coexecutor of his uncle’s will).
    1. In re Bikman, 304 A.D.2d 162 (1st Dept. 2003) (18-month suspension; court noted that “[e]ven if respondent did not quite manage to commit criminal or common-law fraud, she surely was dishonest, she was deceitful and she did misrepresent,” and “a lawyer’s unethical conduct, even when it occurs outside the practice of law, is a proper concern of the Disciplinary Committee because it tends to reflect adversely on the legal profession as a whole”).
    1. Lieberman and Supple, supra note 1. Thus, in our view, for example, dishonesty in applying for a mortgage or financial aid will likely be subject to discipline, whereas marital infidelity—however one views it from a moral perspective—falls within a zone of privacy that should be out of bounds for disciplinary agencies.

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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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