People v. Romero, 91 N.Y.2d 750 (1998)
Judiciary Law § 476-a(1), which authorizes the Attorney General to maintain an “action” against those engaged in the unlawful practice of law, refers only to civil actions, not criminal prosecutions, unless explicitly authorized by statute.
Summary
The New York Court of Appeals addressed whether the Attorney General had the authority under Judiciary Law § 476-a(1) to criminally prosecute an individual for the unlawful practice of law and petit larceny. The defendant, an attorney licensed in Honduras, was granted permission to practice law pro hac vice in New York. After this permission expired, he accepted payment from a woman to represent her in a divorce, but he did not actually provide legal representation. The Attorney General secured an indictment and conviction. The Court of Appeals reversed, holding that § 476-a(1) only authorizes civil actions, and the Attorney General lacks general prosecutorial power without explicit statutory authorization.
Facts
Defendant, an attorney in Honduras, was admitted to practice law pro hac vice in New York for a specific project. After his pro hac vice admission expired, a woman approached him seeking representation in her divorce. The defendant accepted $750 from the woman and prepared divorce documents, listing her as a “pro se plaintiff.” The woman later discovered that “pro se” meant she was not represented by an attorney, despite paying the defendant for legal services.
Procedural History
The Attorney General presented the matter to a Grand Jury, which indicted the defendant for offering a false instrument for filing (later dismissed), unauthorized practice of law, and petit larceny. The trial court denied the defendant’s motion to dismiss, asserting that Judiciary Law § 476-a authorized the prosecution. The jury convicted the defendant of unlawful practice of law and petit larceny. The Appellate Division affirmed the conviction, arguing that Executive Law § 63(3) provided an alternative basis for the Attorney General’s authority. The Court of Appeals granted leave to appeal.
Issue(s)
Whether Judiciary Law § 476-a confers prosecutorial authority on the Attorney-General to bring criminal charges against an individual allegedly engaged in the unauthorized practice of law?
Holding
No, because the word “action” in Judiciary Law § 476-a(1) refers only to civil actions, and the Attorney General lacks general prosecutorial power without explicit statutory authorization.
Court’s Reasoning
The Court of Appeals began by noting that the Appellate Division’s reliance on Executive Law § 63(3) was not properly before the court because it was not ruled upon in the criminal court action. The court emphasized that District Attorneys have plenary prosecutorial power, but the Attorney General only has such power when specifically authorized by statute, citing Della Pietra v. State of New York, 71 N.Y.2d 792, 797. The Attorney General argued that Judiciary Law § 476-a, which allows the Attorney General to “maintain an action” against those unlawfully practicing law, includes criminal prosecution. The court disagreed, stating that the word “action” as used in the statute, only encompasses a civil action.
The Court reasoned that Judiciary Law § 476-a(2) allows bar associations to maintain “such an action,” and interpreting “action” to include criminal prosecution would give bar associations the power to prosecute crimes, which is traditionally a state power. The Court stated, “To read the word ‘action’ in section 476-a (1) to encompass a criminal action would mean that a Bar association could prosecute crimes, and, as a corollary matter, could also convene Grand Juries and issue subpoenas. Such a conclusion would be contrary to the fundamental principle that the power to prosecute crimes is traditionally a power of the State as sovereign.”
Furthermore, Judiciary Law § 476-b mandates a civil remedy, an injunction, for successful actions under § 476-a. This injunction is a civil action additional to any criminal sanctions. The legislative history of § 476-a, derived from the Civil Practice Act § 1221-a, supports its civil nature, as there was no need to specify it as civil within the Civil Practice Act. The Court emphasized that several other statutes specifically authorize the Attorney General to prosecute crimes, but Judiciary Law § 476-a lacks such specific authorization. Therefore, the Attorney General was limited to a civil prosecution in this case.