In re Embser, 91 N.Y.2d 711 (1998)
A judge may be removed from judicial office for misconduct, including actions taken in their prior capacity as an attorney, that demonstrate a lack of integrity and abuse of trust.
Summary
W. Joseph Embser, a Justice of the Wellsville Town Court, was removed from his judicial position following his disbarment for misconduct involving dishonesty, fraud, and deceit related to his handling of an estate as a private attorney. The New York Court of Appeals upheld the State Commission on Judicial Conduct’s determination, finding that Embser’s misappropriation of estate funds and failure to properly report or obtain approval for attorney’s fees and executor’s commissions demonstrated a gross abuse of trust and a lack of integrity, rendering him unfit to serve as a judge. The court relied on the factual findings from the disbarment proceeding, which Embser did not successfully dispute.
Facts
Embser, an attorney and later a Town Justice, had a long-standing relationship with Edward and Edna Antoon. He drafted Edward’s will and served as the attorney for Edward’s estate after his death in 1989, with Edna as the executrix. Edna moved to Ohio and granted Embser a general power of attorney. Embser opened an estate bank account, controlling all checks. He issued numerous checks to himself, purportedly for attorney’s fees and executor’s commissions, totaling $399,320 between 1989 and 1993. He did not obtain court approval for these payments, as required. He also filed a Petition to Determine Estate Tax, declaring a significantly lower attorney’s fee ($156,575) than he actually received.
Procedural History
The Appellate Division disbarred Embser based on findings that he misappropriated estate funds. The State Commission on Judicial Conduct then charged Embser with judicial misconduct. Relying on the disbarment proceeding and Embser’s failure to dispute the factual allegations, the Commission summarily determined that he was guilty of misconduct and should be removed from office. Embser appealed, arguing the Referee’s findings were inaccurate, but the Court of Appeals affirmed the Commission’s determination.
Issue(s)
Whether the State Commission on Judicial Conduct appropriately determined the judicial misconduct charge against Justice Embser on the basis of findings in a prior attorney disciplinary proceeding.
Holding
Yes, because the statutory requirement authorizing the Commission to make a determination after a hearing does not require a formal hearing where no issue of fact is raised. The evidence presented during the disbarment proceedings sufficiently demonstrated judicial misconduct.
Court’s Reasoning
The Court of Appeals found that Embser’s actions constituted a gross abuse of trust. Even considering the broad powers granted in the will or Edna Antoon’s purported desire for Embser to be well-compensated, it did not justify the unauthorized removal of large sums of money from the estate. The court emphasized that Embser’s Declaration of Executor’s Commissions and Attorney’s Fees, submitted to the Surrogate’s Court, was misleading because it understated the amount of fees he had taken. The court stated, “[t]he statutory requirement authorizing the commission to make a determination after a hearing does not require the commission to go through a meaningless formal hearing where no issue of fact is raised” (Matter of Petrie v State Commn. on Judicial Conduct, 54 NY2d 807, 808). The evidence presented during the disbarment proceedings, specifically the record of misappropriated funds, was sufficient to prove that Embser helped himself to over $200,000 of estate funds without proper authorization. This abuse of trust warranted his removal from judicial office.