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A lawyer who thought he was eligible for reinstatement after being disbarred for seven years has been told he must wait another seven. The attorney was not actually disbarred in 1997, because he failed to notify authorities that he had been convicted of a crime. He finally lost his license this year as he was about to apply for reinstatement. The Appellate Division, 1st Department, last week refused to backdate the disbarment to the time of his conviction. A federal judge convicted the lawyer, Thomas Zichettello, of racketeering in his job as an administrator for the scandal-ridden Transit Police Benevolent Association. Because a felony conviction inevitably brings disbarment, Zichettello said, he assumed it was automatic. He did not report the felony conviction to the 1st Department or its disciplinary committee as is required by state law, he said. Instead, he “instituted a self-imposed disbarment,” he told the 1st Department. He did not practice law after serving a prison term, and waited the seven years required by New York Judiciary Law to petition to vacate the disbarment. The Departmental Disciplinary Committee learned of his conviction in early 2004 and moved to make the disbarment official. Zichettello in turn moved to date the action back to the conviction date and to be reinstated immediately. On Thursday, a five-judge panel unanimously approved the committee’s recommendation for disbarment and rejected Zichettello’s cross-motion in Matter of Thomas Zichettello, M-496, M-1355. “If, as the Code of Professional Responsibility counsels, lawyers are to maintain their unique ability to play a critical role in sustaining the rule of law on which depends the continued existence of our free and democratic society, the legal profession must earn the respect and confidence of society,” the panel wrote. “By his failure to report his federal conviction, respondent effectively shielded himself from the discipline of this Court, which, as much as the conduct of an attorney subject thereto, guides the public in its perception of the Bar.” Because of the seven-year requirement, Zichettello cannot petition the court to revisit the disbarment until February 2011. “He will now be out of practice for 13 or 14 years and that, we think, is unfair,” said Zichettello’s attorney, solo practitioner Richard Maltz. “We thought we had made a compelling case for doing something unusual. With his background, we thought the court might grant him this albeit unprecedented relief.” Zichettello served as the executive assistant to Ronald Reale, the former leader of the transit-police union who was sentenced to seven years for his role in a kickback scheme involving millions of dollars in union funds. Zichettello, who cooperated with government investigators, received a six-month sentence. During the joint trial, Zichettello admitted receiving monthly payments from lawyers from the firm of Lysaght, Lysaght & Kramer in exchange for vastly inflated union contracts. Zichettello recounted, among other things, receiving a $150,000 bribe, counting it in a Brooklyn basement, then stashing it in a coffee can. In his answer to the committee’s Feb. 4 petition to disbar, Zichettello stated that in 1997 his then-attorney erroneously advised him that the conviction would automatically be reported to the appropriate authorities. The court pointed out that numerous sections of New York law require an attorney convicted of a felony to report the conviction. “[T]he attorney shall file, within thirty days thereafter, with the appellate division of the supreme court, the record of such conviction,” according to Judiciary Law 90(4). “The failure of the attorney to so file shall be deemed professional misconduct.” Similarly, 22 NYCRR 603.12 mandates that any attorney convicted of a felony must “promptly advise” the Departmental Disciplinary Committee. Hal Lieberman, the former chief counsel for the 1st Department’s disciplinary committee, said he agrees with the principle in the decision. “It was the lawyer’s obligation to report the matter,” said Lieberman, now a partner at Hinshaw & Culbertson. “The committee would have no good way to track the conduct and criminal problems of lawyers … in various parts of the country.” Zichettello’s attorney disagreed. “He deserved to be disbarred and to be out of the practice for seven years. He didn’t deserve to be out of the practice for 14 years,” said Maltz, who worked for the disciplinary committee for 12 years before turning to private practice. “He’s paying more than he deserves to pay.” Maltz said that Zichettello is unlikely to appeal but that he will reapply for admission to the bar when he becomes eligible in 2011. Zichettello did not return phone calls seeking comment.

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