Hal R. Lieberman
Hal R. Lieberman (NYLJ/Rick Kopstein)

Major changes have come to attorney discipline in New York. New statewide rules governing attorney discipline procedures were implemented on Oct. 1, 2016. The new uniform rules are set forth in 22 NYCRR Part 1240. In previous columns, published prior to the effective date of the new rules, I addressed two main areas: (1) formal proceedings, described in the uniform rules as “Proceedings in the Appellate Division;” and, (2) informal proceedings, which the new rules refer to as “Proceedings Before Committees.” Now that the uniform rules have been implemented, in this column I will address some highlights of “related proceedings” under the new regime, i.e., diversion, interim suspension, criminal convictions, collateral estoppel, and reinstatements.

Diversion

A significant achievement of the new uniform rules is the standardization of a statewide rule providing for diversion to a monitoring program. Under the former departmental rules, the Second, Third, and Fourth Departments had adopted special provisions allowing attorneys with substance abuse problems to continue practicing law under certain conditions. Notably, however, the First Department had no “diversion” or “monitoring” program. Rather, that court routinely suspended lawyers who were found incapacitated because of substance abuse, until they could demonstrate the absence of addiction and readiness to resume practice.

Under the new uniform rule, 22 NYCRR 1240.11, if an investigation or a formal proceeding reveals that an attorney may be suffering from substance abuse, the appellate division may stay the investigation or proceeding and direct the attorney to complete a monitoring program under the auspices of a court approved lawyers’ assistance program. The uniform rules have also standardized the factors an appellate division considers in making a determination to divert an attorney to a monitoring regime. The factors are:

(i) the nature of the alleged misconduct;

(ii) whether the alleged misconduct occurred during a time period when the attorney suffered from the claimed impairment; and,

(iii) whether diversion is in the public interest.

22 NYCRR §1240.11(a).

If an attorney successfully completes the monitoring program, the court may direct the discontinuance of the investigation or proceeding. On the other hand, the court may reinstate the investigation or proceeding, or take other appropriate action, if an attorney fails to successfully complete the monitoring program. In any event, pursuant to the uniform rule, all aspects of an attorney’s participation in such a program are confidential or privileged.See N.Y. Judiciary L. §§90(10) and 499.

Interim Suspension

Since the landmark 1986 Court of Appeals case, Matter of Padilla, 67 N.Y.2d 440, 503 N.Y.S.2d 550 (1986), lawyers have been subject to suspension from practice on an interim basis, without formal charges or an evidentiary hearing, based on proof of immediate danger to the bar and public. In the years following Padilla, each appellate division promulgated rules providing for the interim suspension of attorneys. Under the new regime, the rules have been harmonized statewide. 22 NYCRR §1240.9.

In Matter of Russakoff, 79 N.Y.2d 520, 583 N.Y.S. 949, a 1992 Court of Appeals opinion, the court noted that the then-existing departmental rules did not provide for a prompt post-suspension hearing, and opined that “[s]ome action to correct this omission seems warranted.” 79 N.Y.2d 520, 583 N.Y.S. at 950-51. Notwithstanding that guidance, prior to the adoption of the new statewide rules only the First Department had corrected the omission the Court of Appeals identified in Russakoff. The new uniform rules address the lacuna to the extent of providing that any interim suspension order must set forth the basis for the suspension and provide the attorney with an opportunity for a post-suspension hearing. 22 NYCRR 1240.9(c).

The First Department had also added sharper teeth to an interim suspension order by allowing the Departmental Disciplinary Committee (DDC) to file a motion requesting that an attorney be disbarred if he or she did not appear or apply for a hearing within six months. The new uniform rules likewise adopt that procedure, giving the grievance committees and appellate divisions a significant new tool to discipline attorneys who engage in conduct immediately threatening the public interest. The new uniform rules have also added an additional ground for interim suspension, which only the First Department applied under the former departmental rules. Now, the grievance committees statewide may seek an attorney’s interim suspension based on the attorney’s willful failure or refusal to pay money owed to a client, when the debt is demonstrated by an admission, a judgment, or some other clear and convincing evidence.

Criminal Conviction

The new uniform rules explicitly allow the appellate divisions to exercise discretion concerning interim suspensions pending final disposition in “serious crime” proceedings.1 Specifically, the applicable statewide rule provides that “the Court may suspend the respondent pending final disposition unless such a suspension would be inconsistent with the maintenance of the integrity and honor of the profession, the protection of the public and the interest of justice.” 22 NYCRR §1240.12(c)(2)(ii) (emphasis added). Thus, under the uniform rule, it is possible in each department to avoid an interim suspension in serious crime cases in certain conditions.

As a practical matter, each appellate division, to varying degrees, exercises its discretion as to whether an interim suspension is warranted. The former departmental rules generally incorporated the mandates of Judiciary Law §90(4) concerning serious crimes,2 although there were distinctions. The First and Second Departments, for example, lacked a provision referring specifically to interim suspensions during the pendency of serious crime proceedings. Although not a major revision, the adoption of a statewide rule explicitly giving the appellate divisions discretion in serious crime proceedings is a welcome change.

Collateral Estoppel

The Commission on Statewide Attorney Discipline, which issued a report in September 2015, made numerous recommendations which have been adopted in the uniform rules. Among its suggestions, the Commission proposed the adoption of a completely new rule that would have codified collateral estoppel procedure in the wake of Matter of Dunn, 24 N.Y.3d 699, 3 N.Y.S.3d 751 (2015), in which the Court of Appeals, in 2015, validated the application of collateral estoppel to disciplinary proceedings where there was a prior civil adjudication implicating the Rules of Professional Conduct. Unfortunately (in the opinion of this columnist), the new uniform rules do not contain any guidance concerning collateral estoppel procedure. The absence of procedural rules governing collateral estoppel is a lacuna which should be filled. There ought to be rules governing the standards and procedures a grievance committee should follow when it applies for a determination of collateral estoppel following a civil finding of attorney misconduct (just as there are procedural rules governing the process of determining the preclusive effect of a criminal conviction or discipline in a foreign jurisdiction).

Reinstatement

Another achievement of the new uniform rules is the harmonization of the procedures on applications for reinstatement, including the statewide standardization of the required application procedures, and applicant affidavits, for various categories of attorneys: disbarred; suspended for six months or less; suspended for more than six months; resigned while a proceeding or investigation was pending; and resigned for non-disciplinary reasons.

Notably, however, the Commission on Statewide Attorney Discipline recommended revised court rules to streamline procedures for what are, in essence, “ministerial” proceedings, such as uncontested applications for reinstatement, including applications for reinstatement following a suspension for failure to timely comply with the registration requirements of Judiciary Law §468-A.3 Here, again, in my opinion, those who promulgated the new uniform rules missed an opportunity for a more comprehensive change. Rather than establishing a statewide, streamlined procedure for reinstatement following a suspension for noncompliance with the registration requirements, the uniform rules merely added a provision to the rule governing “Reinstatement of Disbarred or Suspended Attorneys” which provides that each appellate division “may establish an alternative expedited procedure for reinstatement of attorneys suspended for violation of the registration requirements set forth in Judiciary Law §468-A.” 22 NYCRR §1022.16(f) (emphasis added). As of this writing, none of the appellate divisions has established an alternative expedited procedure.

Conclusion

The new uniform rules standardize many of the special procedures that were non-uniform among the four Departments. Unfortunately, however, those who promulgated the new rules missed important opportunities to assist the bar and the courts by removing reinstatement following administrative suspensions from the docket of the grievance committees and by failing to adopt a uniform rule governing collateral estoppel procedure.

Endnotes:

1. “Serious crimes” include felonies that lack felony analogs in New York, as well as misdemeanors with one or more of the elements listed in Judiciary Law §90(4)(d).

2. N.Y. Judiciary L. §90(4) provides, in pertinent part, that an attorney convicted of a serious crime “shall be suspended” until a final order of the appellate division ordering the attorney to show cause why a final order of suspension, censure or removal from office should not be made. However, “upon good cause shown” the appellate division may, “upon application of the attorney or on its own motion, set aside such suspension when it appears consistent with the maintenance of the integrity and honor of the profession, the protection of the public and the interest of justice.” N.Y. Judiciary L. §90(4)(f).

3. N.Y. Judiciary L. §468-A requires the biennial registration of all attorneys admitted in the State of New York. The attorney registration system is administered not by the appellate divisions, but by the Office of Court Administration (OCA). The registration fee is currently $375. See Hal R. Lieberman et al., “How Do I Get Back My Law License?,” NYLJ, Nov. 29, 2013.

Major changes have come to attorney discipline in New York . New statewide rules governing attorney discipline procedures were implemented on Oct. 1, 2016. The new uniform rules are set forth in 22 NYCRR Part 1240. In previous columns, published prior to the effective date of the new rules, I addressed two main areas: (1) formal proceedings, described in the uniform rules as “Proceedings in the Appellate Division;” and, (2) informal proceedings, which the new rules refer to as “Proceedings Before Committees.” Now that the uniform rules have been implemented, in this column I will address some highlights of “related proceedings” under the new regime, i.e., diversion, interim suspension, criminal convictions, collateral estoppel, and reinstatements.

Diversion

A significant achievement of the new uniform rules is the standardization of a statewide rule providing for diversion to a monitoring program. Under the former departmental rules, the Second, Third, and Fourth Departments had adopted special provisions allowing attorneys with substance abuse problems to continue practicing law under certain conditions. Notably, however, the First Department had no “diversion” or “monitoring” program. Rather, that court routinely suspended lawyers who were found incapacitated because of substance abuse, until they could demonstrate the absence of addiction and readiness to resume practice.

Under the new uniform rule, 22 NYCRR 1240.11 , if an investigation or a formal proceeding reveals that an attorney may be suffering from substance abuse, the appellate division may stay the investigation or proceeding and direct the attorney to complete a monitoring program under the auspices of a court approved lawyers’ assistance program. The uniform rules have also standardized the factors an appellate division considers in making a determination to divert an attorney to a monitoring regime. The factors are:

(i) the nature of the alleged misconduct;

(ii) whether the alleged misconduct occurred during a time period when the attorney suffered from the claimed impairment; and,

(iii) whether diversion is in the public interest.

22 NYCRR §1240.11(a) .

If an attorney successfully completes the monitoring program, the court may direct the discontinuance of the investigation or proceeding. On the other hand, the court may reinstate the investigation or proceeding, or take other appropriate action, if an attorney fails to successfully complete the monitoring program. In any event, pursuant to the uniform rule, all aspects of an attorney’s participation in such a program are confidential or privileged.See N.Y. Judiciary L. §§90(10) and 499.

Interim Suspension

Since the landmark 1986 Court of Appeals case, Matter of Padilla, 67 N.Y.2d 440, 503 N.Y.S.2d 550 (1986), lawyers have been subject to suspension from practice on an interim basis, without formal charges or an evidentiary hearing, based on proof of immediate danger to the bar and public. In the years following Padilla, each appellate division promulgated rules providing for the interim suspension of attorneys. Under the new regime, the rules have been harmonized statewide. 22 NYCRR §1240.9 .

In Matter of Russakoff, 79 N.Y.2d 520, 583 N.Y.S. 949, a 1992 Court of Appeals opinion, the court noted that the then-existing departmental rules did not provide for a prompt post-suspension hearing, and opined that “[s]ome action to correct this omission seems warranted.” 79 N.Y.2d 520, 583 N.Y.S. at 950-51. Notwithstanding that guidance, prior to the adoption of the new statewide rules only the First Department had corrected the omission the Court of Appeals identified in Russakoff. The new uniform rules address the lacuna to the extent of providing that any interim suspension order must set forth the basis for the suspension and provide the attorney with an opportunity for a post-suspension hearing. 22 NYCRR 1240.9(c) .

The First Department had also added sharper teeth to an interim suspension order by allowing the Departmental Disciplinary Committee (DDC) to file a motion requesting that an attorney be disbarred if he or she did not appear or apply for a hearing within six months. The new uniform rules likewise adopt that procedure, giving the grievance committees and appellate divisions a significant new tool to discipline attorneys who engage in conduct immediately threatening the public interest. The new uniform rules have also added an additional ground for interim suspension, which only the First Department applied under the former departmental rules. Now, the grievance committees statewide may seek an attorney’s interim suspension based on the attorney’s willful failure or refusal to pay money owed to a client, when the debt is demonstrated by an admission, a judgment, or some other clear and convincing evidence.

Criminal Conviction

The new uniform rules explicitly allow the appellate divisions to exercise discretion concerning interim suspensions pending final disposition in “serious crime” proceedings.1 Specifically, the applicable statewide rule provides that “the Court may suspend the respondent pending final disposition unless such a suspension would be inconsistent with the maintenance of the integrity and honor of the profession, the protection of the public and the interest of justice.” 22 NYCRR §1240.12(c)(2)(ii) (emphasis added). Thus, under the uniform rule, it is possible in each department to avoid an interim suspension in serious crime cases in certain conditions.

As a practical matter, each appellate division, to varying degrees, exercises its discretion as to whether an interim suspension is warranted. The former departmental rules generally incorporated the mandates of Judiciary Law §90(4) concerning serious crimes,2 although there were distinctions. The First and Second Departments, for example, lacked a provision referring specifically to interim suspensions during the pendency of serious crime proceedings. Although not a major revision, the adoption of a statewide rule explicitly giving the appellate divisions discretion in serious crime proceedings is a welcome change.

Collateral Estoppel

The Commission on Statewide Attorney Discipline, which issued a report in September 2015, made numerous recommendations which have been adopted in the uniform rules. Among its suggestions, the Commission proposed the adoption of a completely new rule that would have codified collateral estoppel procedure in the wake of Matter of Dunn, 24 N.Y.3d 699, 3 N.Y.S.3d 751 (2015), in which the Court of Appeals, in 2015, validated the application of collateral estoppel to disciplinary proceedings where there was a prior civil adjudication implicating the Rules of Professional Conduct. Unfortunately (in the opinion of this columnist), the new uniform rules do not contain any guidance concerning collateral estoppel procedure. The absence of procedural rules governing collateral estoppel is a lacuna which should be filled. There ought to be rules governing the standards and procedures a grievance committee should follow when it applies for a determination of collateral estoppel following a civil finding of attorney misconduct (just as there are procedural rules governing the process of determining the preclusive effect of a criminal conviction or discipline in a foreign jurisdiction).

Reinstatement

Another achievement of the new uniform rules is the harmonization of the procedures on applications for reinstatement, including the statewide standardization of the required application procedures, and applicant affidavits, for various categories of attorneys: disbarred; suspended for six months or less; suspended for more than six months; resigned while a proceeding or investigation was pending; and resigned for non-disciplinary reasons.

Notably, however, the Commission on Statewide Attorney Discipline recommended revised court rules to streamline procedures for what are, in essence, “ministerial” proceedings, such as uncontested applications for reinstatement, including applications for reinstatement following a suspension for failure to timely comply with the registration requirements of Judiciary Law §468-A.3 Here, again, in my opinion, those who promulgated the new uniform rules missed an opportunity for a more comprehensive change. Rather than establishing a statewide, streamlined procedure for reinstatement following a suspension for noncompliance with the registration requirements, the uniform rules merely added a provision to the rule governing “Reinstatement of Disbarred or Suspended Attorneys” which provides that each appellate division “may establish an alternative expedited procedure for reinstatement of attorneys suspended for violation of the registration requirements set forth in Judiciary Law §468-A.” 22 NYCRR §1022.16(f) (emphasis added). As of this writing, none of the appellate divisions has established an alternative expedited procedure.

Conclusion

The new uniform rules standardize many of the special procedures that were non-uniform among the four Departments. Unfortunately, however, those who promulgated the new rules missed important opportunities to assist the bar and the courts by removing reinstatement following administrative suspensions from the docket of the grievance committees and by failing to adopt a uniform rule governing collateral estoppel procedure.

Endnotes:

1. “Serious crimes” include felonies that lack felony analogs in New York , as well as misdemeanors with one or more of the elements listed in Judiciary Law §90(4)(d).

2. N.Y. Judiciary L. §90(4) provides, in pertinent part, that an attorney convicted of a serious crime “shall be suspended” until a final order of the appellate division ordering the attorney to show cause why a final order of suspension, censure or removal from office should not be made. However, “upon good cause shown” the appellate division may, “upon application of the attorney or on its own motion, set aside such suspension when it appears consistent with the maintenance of the integrity and honor of the profession, the protection of the public and the interest of justice.” N.Y. Judiciary L. §90(4)(f).

3. N.Y. Judiciary L. §468-A requires the biennial registration of all attorneys admitted in the State of New York . The attorney registration system is administered not by the appellate divisions, but by the Office of Court Administration (OCA). The registration fee is currently $375. See Hal R. Lieberman et al., “How Do I Get Back My Law License?,” NYLJ, Nov. 29, 2013.