Matter of Barash, 20 N.Y.2d 154 (1967)
An attorney disbarred following a felony conviction is entitled to either prompt reinstatement upon reversal of that conviction or the commencement of disciplinary proceedings based on sufficient charges and proof to warrant disbarment.
Summary
Barash, an attorney, was automatically disbarred after being convicted of a felony in federal court. The conviction was later reversed, and a new trial was ordered. Barash applied for reinstatement, but the Appellate Division denied his motion, allowing him to reapply after the federal indictment was resolved. The New York Court of Appeals held that while automatic reinstatement is not required upon reversal, the attorney is entitled to either reinstatement or the initiation of disciplinary proceedings based on adequate grounds for disbarment.
Facts
Barash was admitted to the New York Bar in 1950 and had been a certified public accountant since 1943. He was convicted of federal crimes related to bribing IRS agents and sentenced to imprisonment. The United States Court of Appeals reversed his conviction due to errors in evidence admission, insufficient proof, limited cross-examination, and errors in jury instructions. After the reversal, the Bar Association began proceedings to strike Barash’s name from the roll of attorneys. Barash then moved for reinstatement.
Procedural History
The United States District Court convicted Barash of a felony. The United States Court of Appeals reversed the conviction and remanded for a new trial. The Association of the Bar of the City of New York initiated proceedings to strike Barash’s name from the roll of attorneys. Barash moved for reinstatement with the Appellate Division, which was denied without prejudice. Barash appealed to the New York Court of Appeals.
Issue(s)
Whether an attorney, automatically disbarred upon felony conviction, is entitled to automatic reinstatement upon reversal of that conviction; and if not, what procedures are required to determine reinstatement eligibility.
Holding
No, an attorney is not automatically entitled to reinstatement upon reversal of a felony conviction. However, the attorney is entitled to either prompt reinstatement or the prompt institution of disciplinary proceedings to prevent reinstatement based on sufficient evidence of conduct meriting disbarment, because a reversed conviction is nullified as if it never existed.
Court’s Reasoning
The Court of Appeals acknowledged that Judiciary Law § 90 grants the Appellate Division discretion in vacating or modifying disbarment orders after a felony conviction reversal. However, the court distinguished reversals from pardons, noting that a reversal nullifies the conviction, whereas a pardon forgives the offense without erasing the conviction. The Court overruled the harshness of its prior holding in Matter of Ginsberg, which placed the burden on the attorney to prove innocence. The court reasoned that after a reversal, the Appellate Division must determine if the reversal effectively cancels the finding of guilt. The Bar Association should then have the option to institute disciplinary proceedings based on the underlying misconduct. If the Bar does not pursue disciplinary action, the attorney should be reinstated. The court emphasized that an outstanding indictment alone is insufficient to prevent reinstatement. The Court cautioned that the Appellate Division retains the power to take preventive action to protect clients and the public if circumstances suggest peril from the attorney’s conduct, particularly if the conviction arose from a pattern of misconduct affecting clients or the public. The court stated: “Under such circumstances the discretion to be exercised by the Appellate Division becomes a more narrow one. In the first instance, it must ascertain whether the reversal is all that it purports to be in canceling the findings that a crime had been committed.”