New York Law Review

Tag: attorney disbarment

  • Davis v. Good Samaritan Hospital, 99 N.Y.2d 632 (2003): Excuses for Delay and Dismissal for Failure to Prosecute

    Davis v. Good Samaritan Hospital, 99 N.Y.2d 632 (2003)

    A court abuses its discretion by dismissing a complaint for failure to prosecute when the plaintiff demonstrates both a meritorious cause of action and a justifiable excuse for the delay.

    Summary

    This case addresses the circumstances under which a medical malpractice action can be dismissed for failure to prosecute under CPLR 3216. The plaintiff’s original attorney was disbarred, causing significant delays. The Court of Appeals held that the Appellate Division abused its discretion in dismissing the complaint because the plaintiff demonstrated a justifiable excuse for the delay (attorney disbarment) and a meritorious cause of action (supported by a medical expert affidavit). This case highlights the “forgiving” nature of CPLR 3216 regarding litigation delays when a reasonable excuse and meritorious claim exist.

    Facts

    In 1995, the plaintiff initiated a wrongful death action alleging medical malpractice. During discovery, the plaintiff’s attorney faced disciplinary proceedings and was disbarred in June 1998. The attorney’s law firm took over the case, but it remained inactive. The defendants served the plaintiff with a 90-day notice to resume prosecution in April and November 1999. The case was transferred to the plaintiff’s new attorney in January 2000, who promptly notified the parties of the intent to resume prosecution. A certification conference was held in April 2000.

    Procedural History

    The defendants moved to dismiss the complaint after the plaintiff failed to file a note of issue or seek alternative relief within the 90-day period. The Supreme Court denied the motions, finding a meritorious claim and a justifiable excuse for the delay. The Appellate Division reversed, concluding that the plaintiff had not shown a reasonable excuse or proof of a meritorious cause of action, and dismissed the complaint. The Court of Appeals then reviewed the Appellate Division’s decision.

    Issue(s)

    Whether the Appellate Division abused its discretion as a matter of law in dismissing the plaintiff’s complaint for failure to prosecute under CPLR 3216, given the plaintiff’s demonstration of a justifiable excuse for the delay and a meritorious cause of action.

    Holding

    Yes, because the plaintiff demonstrated both a meritorious cause of action, supported by a medical expert affidavit, and a justifiable excuse for the delay, stemming from the disbarment of the original attorney and subsequent neglect.

    Court’s Reasoning

    The Court of Appeals emphasized that CPLR 3216 is “extremely forgiving of litigation delay.” The court referenced Baczkowski v Collins Constr. Co., 89 NY2d 499, 503 (1997). The court found the disbarment of the original attorney and the subsequent neglect by the law firm constituted a justifiable excuse. The court quoted Carte v Segall, 134 AD2d 397, 398 (2d Dept 1987) stating that such delay “was not willful or with intent to abandon the action, but rather was the result of neglect on the part of the [plaintiffs] previous attorneys.” Furthermore, the court noted that after the case was transferred to the new attorney, pretrial matters proceeded with the knowledge and participation of the defense counsel. The court also found the plaintiff demonstrated a meritorious claim by providing a medical expert affidavit, citing Mosberg v Elahi, 80 NY2d 941, 942 (1992). The affidavit detailed the procedures that should have been followed and opined “that the care rendered to [the decedent] deviated from accepted medical practice, was medically negligent and was the cause of [his] passing.” The Court concluded that the Appellate Division abused its discretion in dismissing the complaint. The Court explicitly stated, “Plaintiff demonstrated both a meritorious cause of action and a justifiable excuse for the delay, and as a result, the Appellate Division abused its discretion by dismissing the complaint.”

  • In re Embser, 91 N.Y.2d 711 (1998): Judicial Removal for Misconduct as Attorney

    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.

  • Matter of Johnston, 75 N.Y.2d 403 (1990): Defining ‘Essentially Similar’ Felonies for Attorney Disbarment

    Matter of Johnston, 75 N.Y.2d 403 (1990)

    For an attorney to be automatically disbarred in New York based on a felony conviction in another jurisdiction, the elements of the foreign felony must be ‘essentially similar’ to a felony in New York, requiring more than a superficial resemblance.

    Summary

    This case addresses whether an attorney’s conviction for involuntary manslaughter in Texas warrants automatic disbarment in New York. The New York Court of Appeals held that the Texas felony was not ‘essentially similar’ to the New York felony of vehicular manslaughter because the Texas statute required a lower level of intoxication and did not require proof of a culpable mental state, whereas New York requires criminal negligence in addition to intoxication. The Court reversed the Appellate Division’s order of disbarment, emphasizing that automatic disbarment is only warranted when the out-of-state felony is substantially similar to a New York felony.

    Facts

    Appellant Johnston, an attorney, was convicted of involuntary manslaughter in Texas after being involved in a fatal car accident. Under Texas law, she was found to have caused the death of an individual while operating a motor vehicle in an intoxicated state. The Texas statute defined intoxication as not having the normal use of mental or physical faculties. Based on this conviction, the Departmental Disciplinary Committee sought to have Johnston automatically disbarred in New York.

    Procedural History

    The Departmental Disciplinary Committee applied to the Appellate Division to have Johnston’s name removed from the roll of attorneys based on Judiciary Law § 90 (4) (b) and (e), which mandates automatic disbarment for attorneys convicted of felonies. The Appellate Division granted the application and ordered Johnston’s disbarment, finding the Texas felony essentially similar to New York’s vehicular manslaughter statute. Johnston appealed to the New York Court of Appeals, which granted leave to appeal.

    Issue(s)

    Whether the Texas felony of involuntary manslaughter, as defined in Texas Penal Code § 19.05 (a) (2), is ‘essentially similar’ to the New York felony of vehicular manslaughter, as defined in New York Penal Law § 125.12, such that automatic disbarment is warranted under Judiciary Law § 90 (4) (e).

    Holding

    No, because the Texas and New York felonies differ significantly in the level of intoxication required and the necessary proof of a culpable mental state; the Texas felony does not require proof of criminal negligence, while the New York felony does.

    Court’s Reasoning

    The Court of Appeals analyzed the Texas and New York statutes to determine if they were ‘essentially similar.’ The Texas statute required only that the driver not have the normal use of their mental or physical faculties due to voluntary intoxication, and proof of intoxication causing death was sufficient to establish the offense. The New York statute, however, required a higher degree of impairment constituting ‘intoxication’ and also required proof of criminal negligence, meaning the driver failed to perceive a substantial and unjustifiable risk. The court noted that, in New York, merely being ‘impaired’ by alcohol is insufficient for a vehicular manslaughter conviction; criminal negligence must also be proven. The court emphasized, “It has long been the rule in this State that proof of intoxication alone is insufficient to establish criminal negligence and that the People must also show that the ‘intoxication affected [the defendant’s] physical and mental capacity to the extent that it caused him to operate his vehicle in a culpably reckless manner’.” Because the Texas statute did not require proof of criminal negligence and had a lower threshold for intoxication, the Court found the two felonies were not ‘essentially similar,’ and therefore automatic disbarment was not warranted. The Court reversed the Appellate Division’s order and remitted the matter for further proceedings, meaning a disciplinary hearing would be required to determine the appropriate sanction.

  • Matter of Margiotta, 60 N.Y.2d 147 (1983): Determining ‘Essential Similarity’ for Attorney Disbarment Based on Federal Felony Convictions

    Matter of Margiotta, 60 N.Y.2d 147 (1983)

    For attorney disbarment purposes, a federal felony conviction warrants automatic disbarment in New York if it is ‘essentially similar’ to a New York felony, focusing on the protection of the public and the inherent coercion in actions taken under color of official right.

    Summary

    This case concerns the automatic disbarment of an attorney, Margiotta, following a federal felony conviction for mail fraud and extortion under the Hobbs Act. The New York Court of Appeals considered whether the federal crimes were “essentially similar” to a New York felony, specifically larceny by extortion. The court affirmed the disbarment, holding that extortion under color of official right, even without explicitly instilling fear, is essentially similar to the New York crime, emphasizing the coercive nature of public office. This decision highlights the court’s focus on protecting the public and maintaining the integrity of the legal profession.

    Facts

    Margiotta, an attorney admitted to the New York Bar, was convicted in federal court of mail fraud and extortion under the Hobbs Act. The Hobbs Act convictions involved unlawfully affecting commerce by extortion. Following the conviction, the Appellate Division automatically disbarred Margiotta under Section 90(4) of the Judiciary Law. Margiotta appealed, arguing his federal conviction lacked a New York analogue, entitling him to a mitigation hearing.

    Procedural History

    The Appellate Division concluded Margiotta’s Hobbs Act violation was essentially similar to New York’s felony of larceny by extortion, warranting automatic disbarment. Margiotta appealed to the New York Court of Appeals. The Court of Appeals affirmed the Appellate Division’s order, upholding the automatic disbarment.

    Issue(s)

    Whether a federal felony conviction under the Hobbs Act for obtaining property “under color of official right” is essentially similar to the New York felony of larceny by extortion, even if the federal conviction does not require proof of instilling fear in the victim.

    Holding

    Yes, because for purposes of attorney disbarment under Judiciary Law § 90(4), obtaining property “under color of official right” pursuant to the Hobbs Act is essentially similar to larceny by extortion under New York Penal Law § 155.05(2)(e), as the coercive element is implied from the public official’s position of authority.

    Court’s Reasoning

    The court reasoned that while the Hobbs Act allows for conviction based on either instilling fear or acting under color of official right, the latter is essentially similar to the New York crime. The court emphasized that disciplinary proceedings aim to protect the public, differing from criminal sentencing’s focus on individual punishment. It stated, “the perspective with which the sentencing of convicted criminals is approached — the imposition of individual punishment — is quite different from that involved in professional disciplinary proceedings — the protection of the public.” The court noted that the “color of official right” element in the Hobbs Act reflects the common-law understanding that extortion by a public official inherently involves coercion. Quoting United States v Williams, 621 F.2d 123, 124, the court stated that “[t]he language, ‘under color of official right,’ is consonant with the common law definition of extortion, which could be committed only by a public official taking a fee under color of his office, with no proof of threat, force or duress required.” The court concluded that the coercive element is supplied by the existence of the public office itself. Chief Judge Cooke dissented, arguing the “essential similarity” test lacks a cognizable standard and advocated for a hearing to ensure fairness.

  • Matter of Cahn, 47 N.Y.2d 480 (1979): Determining if a Federal Felony Warrants Automatic Disbarment in New York

    Matter of Cahn, 47 N.Y.2d 480 (1979)

    When determining whether a federal felony conviction warrants automatic disbarment in New York, the court must determine if the elements of the federal crime are essentially similar to those of a New York felony.

    Summary

    This case concerns whether a federal felony conviction should result in automatic disbarment in New York. Cahn, a former District Attorney, was convicted of making false statements, a federal felony. At the time, this triggered automatic disbarment under New York law. However, the law was amended to limit automatic disbarment to federal felonies that would also constitute felonies in New York. Cahn petitioned for vacatur of his disbarment. The Court of Appeals held that the Appellate Division must determine if Cahn’s federal offense would be a felony under New York law, and if not, grant a hearing to consider appropriate relief. The federal felony need not be a mirror image of a New York felony, but must have essential similarity.

    Facts

    Appellant Cahn was admitted to the New York Bar in 1949 and served as Nassau County District Attorney for several years.
    In 1976, Cahn was convicted in federal court of making false statements, a felony under 18 U.S.C. § 1001.
    Under the then-existing New York Judiciary Law § 90(4), this federal felony conviction triggered automatic disbarment.

    Procedural History

    Due to the federal felony conviction, the Appellate Division ordered Cahn’s name stricken from the roll of attorneys.
    The New York Legislature amended Judiciary Law § 90 in 1979, limiting automatic disbarment to felonies in other jurisdictions that would also be felonies in New York.
    The amendment also allowed attorneys automatically disbarred under the prior law to seek vacatur or modification of the disbarment if the offense would not be a felony in New York.
    Cahn petitioned for vacatur of his disbarment under the amended law.
    The Appellate Division did not expressly determine whether Cahn’s federal offense would constitute a felony under New York law.

    Issue(s)

    Whether the Appellate Division, when considering a petition for vacatur of disbarment based on a federal felony conviction, must first determine if the elements of the federal offense would constitute a felony under New York law before considering further relief.

    Holding

    Yes, because the amended statute requires the Appellate Division to make this threshold determination before considering further relief. If the federal offense would not be a felony under New York law, the Appellate Division must then grant a hearing to consider what relief is appropriate.

    Court’s Reasoning

    The Court of Appeals emphasized the importance of the 1979 amendment to Judiciary Law § 90, which narrowed the scope of automatic disbarment.
    The court stated that the Appellate Division must determine “if the offense for which the petitioner was convicted would be a felony under State law and, if not, grant a hearing to consider whether any relief would be appropriate.”
    The court clarified that the federal felony need not be a “mirror image” of a New York felony, perfectly corresponding in every detail. However, it must have “essential similarity.” The court cited Matter of Chu, 42 NY2d 490, 492, for this proposition.
    Because the Appellate Division failed to make this express threshold determination, the Court of Appeals remitted the matter for this determination and other proper proceedings.
    The decision emphasizes a case-by-case analysis to determine whether the out-of-state felony is sufficiently similar to a New York felony to warrant automatic disbarment.

  • Matter of Steinberg v. Meisser, 50 N.Y.2d 77 (1980): Judge’s Right to Salary After Felony Conviction & Disbarment

    Matter of Steinberg v. Meisser, 50 N.Y.2d 77 (1980)

    A judge convicted of a felony and disbarred before the 1976 constitutional amendments is not entitled to judicial salary for the period following disbarment because continued qualification as an attorney is an implied condition of receiving that salary.

    Summary

    This case concerns a Family Court Judge, Steinberg, convicted of perjury in 1974, resulting in automatic disbarment. He sought to recover his judicial salary for the period of 1975-1976, arguing that no formal removal proceedings had been initiated. The Court of Appeals reversed the lower courts’ decisions in favor of Steinberg, holding that a judge who is disbarred due to a felony conviction prior to the 1976 constitutional amendments is not entitled to receive a judicial salary because continued qualification as an attorney is an implied condition of holding judicial office and receiving its associated compensation. The Court emphasized policy considerations, arguing it would damage the public’s perception of the justice system to allow a disbarred judge to continue receiving a salary.

    Facts

    Steinberg was appointed a Family Court Judge in Nassau County in 1972 and elected to a full term commencing in 1973.

    In 1974, he was indicted and subsequently suspended with pay.

    On December 27, 1974, Steinberg was convicted of first-degree perjury, a felony, leading to the cessation of his salary payments on December 31, 1974.

    His conviction was affirmed by the Appellate Division, and leave to appeal was denied.

    No proceedings were ever brought to formally remove him from his judicial office.

    Procedural History

    Steinberg sued to recover his judicial salary for the period between January 1, 1975, and August 31, 1976.

    Special Term granted summary judgment in favor of Steinberg, awarding him the salary but denying interest, based on the precedent of Matter of La Carrubba v. Klein.

    The Appellate Division affirmed the judgment but modified it to include interest from August 31, 1976.

    The Court of Appeals heard the case as a matter of right.

    Issue(s)

    Whether a judge, convicted of a felony and automatically disbarred before the effective date of the 1976 constitutional amendments, is entitled to receive the salary of that judicial office when no proceedings to remove him from office have been initiated.

    Holding

    No, because being qualified to practice law is a continuing requirement to receive a judicial salary, and a judge who is disbarred due to a felony conviction has disqualified himself from receiving that salary.

    Court’s Reasoning

    The court distinguished this case from Matter of La Carrubba v. Klein, which held that the Public Officers Law does not apply to judicial officers regarding removal for misconduct. Here, the disqualification arose not from the Public Officers Law, but from Section 90(4) of the Judiciary Law, which mandates automatic disbarment upon felony conviction. The court emphasized that Steinberg’s conviction occurred before the 1976 constitutional amendments.

    The Court reasoned that while Article VI, Section 20(a) of the Constitution requires a person to have been admitted to practice law for at least ten years to “assume the office of judge,” this requirement implies a continuing obligation to remain qualified as an attorney to continue receiving the salary of judicial office. Citing Thaler v. State of New York, the Court emphasized that it was a continuing requirement that “the occupant of the office must continue to be an attorney admitted to practice law in the State.”

    The Court also considered policy implications. Quoting Matter of Mitchell, the Court stated it “would invite scorn and disrespect for our rule of law” if a convicted judge continued to receive a salary while incarcerated. The court addressed concerns about diminishing a judge’s compensation during their term (Article VI, Section 25(a)), arguing that it is not a diminishment when a judge disqualifies themselves and fails to perform the functions of their office. The provision against diminishment protects judicial independence from legislative control, not from a judge’s own disqualifying actions.

    The Court stated that the Constitution should be construed to give its provisions practical effect and that the requirement to be a lawyer imports not only experience but also “the character and general fitness requisite for an attorney”.

  • Matter of Levy, 48 N.Y.2d 860 (1979): Automatic Disbarment for Federal Felony Conviction

    48 N.Y.2d 860 (1979)

    An attorney is automatically disbarred in New York upon conviction of a federal felony, even if that felony lacks a direct analogue in New York law, regardless of whether the conviction resulted from an admission of guilt or a plea entered pursuant to North Carolina v. Alford.

    Summary

    This case concerns the automatic disbarment of an attorney following a federal felony conviction. Levy was convicted of a federal felony under 15 U.S.C. § 645. The Appellate Division subsequently struck his name from the roll of attorneys. The Court of Appeals affirmed, holding that Section 90(4) of the Judiciary Law mandates automatic disbarment upon felony conviction, irrespective of whether the federal felony has a direct counterpart in New York law or whether the plea was entered without admitting guilt under North Carolina v. Alford. The court clarified that while the recent amendment to Section 90 does not apply, Levy could seek relief from the Appellate Division under the amended statute.

    Facts

    Appellant Levy, an attorney, was convicted of a felony under Section 645 of Title 15 of the United States Code. Levy entered his plea pursuant to North Carolina v. Alford, meaning he did not explicitly admit guilt but acknowledged that the prosecution had sufficient evidence to convict him.

    Procedural History

    The Appellate Division struck Levy’s name from the roll of attorneys following his federal felony conviction. Levy appealed to the New York Court of Appeals. The Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    Whether an attorney is subject to automatic disbarment in New York State pursuant to Judiciary Law § 90(4) upon conviction of a federal felony, regardless of whether the federal felony has a direct analogue in New York law or whether the plea was entered pursuant to North Carolina v. Alford.

    Holding

    Yes, because Subdivision 4 of section 90 of the Judiciary Law mandates automatic disbarment upon conviction of a felony, and this applies to federal felonies even without a New York analogue, and regardless of whether the plea was entered pursuant to North Carolina v Alford.

    Court’s Reasoning

    The Court of Appeals based its decision on the clear mandate of Judiciary Law § 90(4), which requires automatic disbarment upon conviction of a felony. The court emphasized that prior interpretations of this section established that an attorney is disbarred upon conviction of a federal felony, even if that felony does not have a direct equivalent under New York law. The court cited Matter of Thies, 45 NY2d 865 and Matter of Chu, 42 NY2d 490 to support this interpretation.

    The court rejected Levy’s argument that the North Carolina v. Alford plea should preclude automatic disbarment. The court reasoned that, regardless of whether Levy admitted guilt, the conviction itself triggered the statutory sanction. The court stated: “Although appellant did not admit his guilt, nonetheless he stood convicted of a felony.”

    While the court acknowledged a recent amendment to Section 90, it clarified that the amendment did not apply to this specific appeal. However, the court noted that Levy could petition the Appellate Division for relief under the amended statute if he so chose.

    The court explicitly declined to address the issue of whether the federal offense had a New York counterpart, deeming it unnecessary to the disposition of the case and suggesting the Appellate Division should consider the question anew if a proper application were made.

  • Matter of Ginsberg, 43 N.Y.2d 260 (1977): Mandatory Disbarment for Attorneys Convicted of Federal Felonies

    Matter of Ginsberg, 43 N.Y.2d 260 (1977)

    A New York attorney’s conviction of a federal felony mandates automatic disbarment, regardless of whether the equivalent conduct would constitute a felony under New York law.

    Summary

    This case addresses whether a New York attorney’s conviction for a federal felony automatically triggers disbarment under New York Judiciary Law, even if the underlying conduct wouldn’t be a felony under New York law. The Court of Appeals held that it does, extending the automatic disbarment rule to all federal felony convictions. The majority reasoned that prior case law interpreting the statute mandates this result, while the dissent argued for a more nuanced approach that considers the gravity of the offense and mitigating circumstances.

    Facts

    Ginsberg, an attorney admitted to practice in New York, was convicted of a federal felony. The specific nature of the federal felony is not detailed in this opinion. The issue before the court was solely whether this federal felony conviction automatically required his disbarment in New York.

    Procedural History

    The case reached the New York Court of Appeals to determine the proper application of Judiciary Law § 90(4) regarding the disbarment of attorneys convicted of felonies.

    Issue(s)

    Whether a conviction for any federal felony mandates automatic disbarment of a New York attorney, irrespective of whether the conduct would constitute a felony under New York law.

    Holding

    Yes, because prior interpretations of Judiciary Law § 90(4) mandate automatic disbarment for any felony conviction, including federal felonies, without regard to whether the equivalent conduct is a felony under New York law.

    Court’s Reasoning

    The Court majority based their decision on the precedent set by Matter of Donegan, 282 N.Y. 285, which interpreted Judiciary Law § 90(4) to require automatic disbarment upon felony conviction. They extended this rule to all federal felony convictions, stating that the statute’s language and prior judicial interpretations left no room for considering whether the underlying conduct would constitute a felony under New York law. The Court emphasized the need for a clear and consistently applied rule. The dissenting judges argued that the majority’s decision was an unwarranted extension of the disbarment rule and a direct overruling of the spirit, if not the letter, of Donegan. They contended that the gravity of the offense and mitigating circumstances should be considered before imposing such a severe penalty as disbarment, stating that a rigid, per se rule is needlessly harsh. The dissent argued for a more flexible approach that allows for consideration of individual circumstances, quoting the concurring opinion in Matter of Chu, 42 N.Y.2d 490, 495, which advocated for firm discipline without sacrificing fairness and reason. The dissent predicted that the majority’s inflexible rule would lead to aberrant results that could only be avoided by legislative action.

  • Matter of Gutman, 43 N.Y.2d 467 (1977): Defining ‘Felony’ for Attorney Disbarment Purposes

    Matter of Gutman, 43 N.Y.2d 467 (1977)

    An attorney’s conviction for criminal conduct deemed a felony by Congress warrants automatic disbarment in New York, even if the corresponding state law doesn’t precisely mirror the federal statute.

    Summary

    The New York Court of Appeals addressed whether an attorney’s federal felony conviction mandated automatic disbarment under New York Judiciary Law. Gutman was convicted in federal court for making false statements to the Immigration and Naturalization Service. The Bar Association sought his disbarment, arguing the federal crime was equivalent to a New York felony. The Appellate Division denied automatic disbarment, finding the state crime required ‘intent to defraud the state,’ absent in the federal offense. The Court of Appeals reversed, holding that a federal felony conviction, particularly when a substantially similar state felony exists, is sufficient grounds for automatic disbarment to protect the public.

    Facts

    Respondent Gutman, an attorney, was indicted on 14 counts of federal felonies related to procuring permanent residency for aliens through arranged marriages. He was convicted on 10 counts of violating 18 U.S.C. § 1001 for making false statements and submitting fraudulent documents to the Immigration and Naturalization Service. He received a suspended sentence, probation, and a fine.

    Procedural History

    The Bar Association petitioned for Gutman’s disbarment based on the felony conviction. The Appellate Division denied the petition for automatic disbarment, appointing a referee for disciplinary proceedings. The Bar Association appealed to the New York Court of Appeals.

    Issue(s)

    Whether conviction of an attorney for a federal felony, specifically violating 18 U.S.C. § 1001, mandates automatic disbarment under New York Judiciary Law § 90(4), even if the elements of the federal crime and a comparable New York state felony (offering a false instrument for filing) are not identical.

    Holding

    Yes, because conviction of an attorney for criminal conduct judged by Congress to be a felony is sufficient ground to invoke automatic disbarment, especially when there is a New York State felony of substantially the same elements. The court determined that the purpose of attorney discipline is to protect the public.

    Court’s Reasoning

    The Court reasoned that the focus of attorney disciplinary proceedings is protecting the public, unlike criminal sentencing which is focused on individual punishment. While acknowledging past reliance on comparisons between federal and state felonies in disbarment cases, the court moved away from requiring an exact mirror image between the federal and state crimes. The Court stated, “When it is the underlying conduct of the attorney which calls for disciplinary response, it makes little sense to say that although that conduct has been defined as felonious throughout the Nation under Federal law, the attorney is not to be automatically disbarred unless our State Legislature has enacted a precisely matching felony statute. To accord determinative significance to such statutory discrepancy would be to elevate insignificance.”

    The court found a close parallelism between the federal statute (18 U.S.C. § 1001) and the New York State felony of offering a false instrument for filing (Penal Law § 175.35). Although the state law requires ‘intent to defraud the state,’ the court held that the core of both offenses is the willful filing of a false statement in a governmental office, knowing it to be false. The court effectively lowered the bar, stating: “[W]hatever may have been the proper evaluation of a felony conviction in courts other than those of our own State in 1940 when Donegan was decided, we now perceive little or no reason for distinguishing between conviction of a Federal felony and conviction of a New York State felony as a predicate for professional discipline.”

  • Matter of Mitchell, 40 N.Y.2d 153 (1976): Disbarment Based on Felony Conviction Pending Appeal

    Matter of Mitchell, 40 N.Y.2d 153 (1976)

    An attorney may be disbarred upon conviction of a felony, even while an appeal of that conviction is pending, without violating due process rights.

    Summary

    John N. Mitchell, a former Attorney General of the United States and an attorney admitted to practice in New York, appealed an order from the Appellate Division disbarring him following his conviction on multiple felony counts in federal court. Mitchell argued that disbarment based on a conviction not yet reviewed on appeal violated his due process rights. The New York Court of Appeals affirmed the disbarment, holding that immediate disbarment upon felony conviction, even pending appeal, is permissible and does not violate due process, as the public interest in maintaining the integrity of the legal profession outweighs the attorney’s interest in continuing to practice.

    Facts

    John N. Mitchell, an attorney, was convicted in the United States District Court for the District of Columbia of conspiracy, obstruction of justice, and perjury. Mitchell conceded that his federal perjury conviction was equivalent to a class D felony under New York law. The Appellate Division struck Mitchell’s name from the roll of attorneys based on the felony conviction, pursuant to Judiciary Law § 90(4).
    Mitchell appealed, arguing his disbarment was premature as his criminal conviction was still under appellate review.

    Procedural History

    The United States District Court for the District of Columbia convicted John Mitchell of federal felonies. The Appellate Division of the New York Supreme Court disbarred Mitchell based on the felony conviction. Mitchell appealed to the New York Court of Appeals, arguing that the disbarment was premature pending the outcome of his federal appeal. The Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    Whether it is constitutionally permissible to disbar an attorney when the sole basis for the disbarment is a felony conviction that is currently subject to appellate review.

    Holding

    No, because due process does not require that a conviction be affirmed by an appellate court before it can serve as the basis for disbarment, and the public interest in protecting the integrity of the legal profession outweighs the attorney’s interest in continuing to practice while the appeal is pending.

    Court’s Reasoning

    The Court of Appeals relied on Judiciary Law § 90(4), which mandates disbarment upon felony conviction. Citing Matter of Ginsberg and Matter of Barash, the court emphasized that disbarment is ipso facto upon conviction. The Court weighed the attorney’s due process rights against the public interest. The Court stated that the primary concern in disbarment is “the protection of the public interest”. The court reasoned that allowing a convicted felon to continue practicing law would undermine the integrity of the legal system. Quoting People ex rel. Karlin v. Culkin, the court emphasized that attorneys are “an instrument or agency to advance the ends of justice.” The Court also cited Matter of Wall, stating, “Of all classes and professions, the lawyer is most sacredly bound to uphold the laws…”. The court held that due process does not require appellate review before disbarment, citing Griffin v. Illinois. The court emphasized that the conviction is presumed valid unless reversed on appeal, stating, “A strong presumption of regularity attaches to that judgment of conviction”. The court analogized the situation to a convicted person’s lack of constitutional right to be at liberty pending appeal. The Court also noted, quoting Matter of Rouss, that “Membership in the bar is a privilege burdened with many conditions.”