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 … Read more
My last column focused on two aspects of the New York State Commission on Statewide Attorney Discipline’s recently released report recommending various reforms: uniformity (consistency) and fairness.1 This column considers additional recommendations described in the report as “fostering efficiency” in our disciplinary system. Translation: addressing perceived, undue delays.2 As discussed in my last column, on March … Read more
The trend toward leniency in Second Department escrow fund misappropriation cases, which I identified in a previous column,1 continued in Matter of Francis.2 In the Francis case, the respondent Marc A. Francis admitted that he received $10,000 in a fiduciary capacity on behalf of a client, but then drew approximately 14 checks and made additional transfers against … Read more
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 … Read more
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 … Read more
In New York and elsewhere, attorney discipline has been imposed rarely, sporadically, and seemingly randomly, after lawyers or their firms have been disqualified in civil or criminal litigation due to a conflict of interest or for other infractions. What factors should trigger a subsequent disciplinary investigation? Does disqualification for a conflict of interest or other … Read more
In the last few weeks, readers of this journal will have seen that literally thousands of New York lawyers have been administratively suspended from law practice for violating New York Judiciary Law sections 90(2) and 468-a, the statutes that require all New York licensed attorneys to biennially register with the Office of Court Administration (OCA) … Read more
Lawyers convicted of criminal offenses not only face penal sanctions but, not surprisingly, are also subject to professional discipline. In New York, Judiciary Law §90(4) strictly governs the effect of criminal conduct on subsequent discipline. It essentially divides crimes that attorneys commit into three categories for purposes of discipline: (1) felonies, warranting automatic disbarment upon … Read more
What appellate remedies are available for a New York lawyer aggrieved by a disciplinary decision of a special referee or hearing panel? The short answer is, “win below,” because opportunities for judicial review are limited, and the likelihood of reversal or modification is not high. This is especially true when a disciplinary determination is based, … Read more
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 … Read more
This is the last in a series of three columns on the subject of due process and New York’s discipline system. The first two articles focused, respectively, on (1) the historical, constitutional development of due process rights in attorney discipline cases, both nationally and in New York,[1] and (2) particular aspects of New York’s discipline … Read more
In a previous column,1 we focused on the historical constitutional development of due process rights in attorney discipline cases, and briefly highlighted the relatively few New York cases addressing procedural due process rights accorded to New York lawyers facing disciplinary charges. This article attempts to drill down by discussing several particular aspects of New York’s … Read more
This article concerns the due process rights of New York lawyers facing disciplinary charges. It highlights the historical constitutional development of due process rights in attorney discipline cases, briefly focuses on the relatively few precedents that address procedural due process in New York’s uniquely disjointed lawyer disciplinary system, and then describes the ABA’s Model Rules … Read more
Attorneys who bully or neglect their clients, steal from escrow accounts, overbill, lie to authorities and generally ignore the Code of Professional Responsibility have been the focus of Hal R. Lieberman’s practice for more than 25 years. Mr. Lieberman honed his skills in the legal ethics and professional liability field as assistant bar counsel in … Read more
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 … Read more
Important Concepts on Ethical Duties Of Loyalty and to Maintain Confidentiality Every lawyer, whether engaged in litigation or transactional work, must have a working knowledge of the law relating to conflicts of interest to properly deal with conflicts situations when they arise, as they very likely will. Failure to have such an understanding can result … Read more
Managing Client or Third-Party Funds Requires Close Study of Fiduciary Accounting Rules One of the saddest things I have encountered during nearly 20 years of practice in the field of legal ethics and professional discipline is the demise of a career in law — literally, someone’s life work — because of sloppiness, ignorance, or the inability … Read more
Small Firms and Solos Are Often Subject to Disciplinary Complaints and Malpractice Claims Every year literally thousands of New York attorneys are recipients of client disciplinary complaints, and many are also sued for malpractice. The vast majority of these respondents (to use the disciplinary parlance) are small firm and solo practitioners. Even more ominously, the numbers … Read more
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 … Read more
Back in 1880, the New York Court of Appeals, in In re: Eldridge,1 suspended a lawyer for writing out answers for witnesses. In its holding, the Court said that a lawyer’s duty is to extract the facts from the witness, not pour them into him; to learn what the witness does know, not teach him what … Read more
Copyright (c) 1997 Hofstra Law Review Association; Hal R. Lieberman “[J]unk justice.“1 “‘[R]acist.”’2 “ “[A]nti-semitism.”’3 Appellate judges are “‘the whores who became madams.”’4 “‘[S] onofabitch.”’5 Inflammatory attacks on judges and the judiciary, like the foregoing lawyers’ comments reported in the press, are becoming more common. Should such remarks be tolerated under the First Amendment, or … Read more