The absence of oral argument in attorney discipline matters in Manhattan and Brooklyn came under scrutiny yesterday at a panel discussion on the differences in the imposition of lawyer discipline among the four Appellate Division departments.
Over the course of the 90-minute discussion at the New York State Bar Association’s annual meeting at the Hilton New York, the panelists also touched on the lack of uniformity in the definitions of sanctions, the role of regional culture, the place of diversionary programs for attorneys addicted to drugs and alcohol and whether diversion should include mental illness.
On yesterday’s panel at the New York State Bar’s annual meeting at the Hilton New York are, from left, Presiding Justice Luis Gonzalez, First Department; Justice Mark Dillon, Second Department; Presiding Justice Karen Peters, Third Department; Anthony Gigliotti, principal counsel, Grievance Committee, Fifth Judicial District, Fourth Department; and professor Roy Simon of Hofstra Law. NYLJ/Rick Kopstein
On the topic of oral arguments, Presiding Justice Karen Peters of the Appellate Division, Third Department (See Profile), said, “I love seeing the people and hearing the people. The more they speak, the more I learn and that affects my decision.”
Likewise, Anthony Gigliotti, principal counsel for the Attorney Grievance Committee in the Fifth Judicial District, Fourth Department, said he has seen cases where oral arguments “change the entire complexion of what you perceive is going on.”
But Justice Mark Dillon (See Profile), who sits in the Second Department, which has the largest caseloads of the four, said oral arguments would “throw a monkey wrench” in the court’s handling of other matters. The public, however, would be “proud” to know the level of discussion about the cases behind closed doors, he said.
Responding to an audience question about the court’s willingness to entertain oral argument on “relatively minor commercial cases,” but not disciplinary matters where a lawyer’s livelihood could hang in the balance, Dillon said, “My colleagues indicated disciplinary cases where oral arguments made a difference. I’m not taking issue with that. I would take issue that, despite oral arguments, we’re not fully versed” on the law and facts of the case.
Likewise, First Department Presiding Justice Luis Gonzalez (See Profile) said the department’s use of a hearing panel consisting of attorneys and lay individuals already provided a “layer of protection” to attorneys facing discipline after a referee hears the case.
Panelist Roy Simon, a professor at the Maurice A. Deane School of Law at Hofstra University, said he was “uncomfortable with an all or nothing approach” as far as oral arguments and suggested their “discretionary” use.
Gonzalez later said he would introduce the idea of “discretionary oral arguments” to First Department judges. He noted that disciplinary cases foster the “most spirited discussions” among his colleagues.
In the course of the discussion, Peters called for more uniformity among the departments on describing sanctions.
For example, she noted the Third Department has “letters of education” and “letters of caution” yet “not every department has the same thing.”
“From my point of view, if we have something called a letter of caution or education or admonishment, it should be defined the same way so wherever you’re practicing law and somehow you find out somebody’s admonished or cautioned, at least you would know what it was,” she said.
Gonzalez noted that the First Department recently adopted the use of a “dismissal with guidance” as a disposition in a disciplinary action. Imposed without any disciplinary implications for the respondent, the disposition would be one step above outright dismissal of a complaint and below an admonition.
Diversionary programs, reserved for attorneys facing disciplinary action who were also coping with drug and alcohol abuse, are in place in the Second, Third and Fourth departments. In some cases, investigations or proceedings are stayed pending treatment.
No formal diversion program is used in the First Department. Gonzalez said in an interview that the First Department had disciplinary rules in place pertaining to attorneys with addictions but that he would propose diversionary programs “for the sake of uniformity” with other departments.
Peters noted there was a “move afoot to expand diversion to include mental illness” in Third Department disciplinary matters.
Likewise, Dillon recalled a case where an attorney facing discipline asked that the case be diverted owing to mental health issues. The Second Department had to deny the application because the department’s rules pertained only to drug and alcohol abuse, he said.
Dillon later noted that “it might be wise for us to discuss the issue at the Second Department if we should change our rule and look into perhaps expanding” diversion to include mental health matters.
At one point the panelists addressed the question of whether regional culture played a role in attorney discipline.
Gonzalez acknowledged “there’s a culture that may dictate as to what we consider the proper rules.” Nevertheless, “everyone in my view that goes through the process has procedural and substantive due process. If you really take a good look, the results are usually similar,” he said.
Each department can fashion its own rules on attorney discipline, J. Richard Supple, Jr., of Hinshaw & Culbertson, who moderated the panel, said in an interview after the event.
Supple said it was “uncertain” if yesterday’s discussion would result in concrete changes but said he thought there was now “some heightened sensitivity to try to move where one department’s rules are more like another’s.”
The benefit of these kinds of discussions, he said, is that “every participant has information they didn’t have before” and know “how other smart well-intentioned folks do what they do.”
@|Andrew Keshner can be contacted at email@example.com.