New York Law Review

Tag: attorney misconduct

  • Matter of Horesco, 87 N.Y.2d 486 (1996): Unemployment Benefits Disqualification for Felony Conviction

    Matter of Horesco, 87 N.Y.2d 486 (1996)

    A felony is considered to be “in connection with” employment, thereby disqualifying a claimant from unemployment benefits under Labor Law § 593(4), if it results in the breach of a duty, whether express or implied, that the claimant owes to the employer.

    Summary

    An attorney, serving as Chief Title Counsel for a title abstract company, was convicted of mail fraud for submitting a false insurance claim. Following his conviction and subsequent termination, he applied for unemployment insurance benefits, which were denied based on Labor Law § 593(4), which disallows benefits for one year after a claimant loses employment due to a felony “in connection with” that employment. The court held that the felony was indeed in connection with his employment because it resulted in the breach of duties he owed his employer, including maintaining his professional qualifications and not tarnishing the company’s reputation. This decision emphasizes that “in connection with” is broader than actions directly against the employer and encompasses any felony impacting the employee’s duties.

    Facts

    The claimant, an attorney, worked for Allied American Abstract Corp. as Chief Title Counsel for approximately 10 years.
    In July 1994, he was indicted and subsequently convicted of mail fraud under 18 U.S.C. § 1341 for submitting a false insurance claim to Allstate Insurance Company regarding a stolen political button collection.
    Following his conviction, his employment with Allied was terminated.

    Procedural History

    The Commissioner of Labor denied the claimant’s application for unemployment insurance benefits, citing Labor Law § 593(4).
    The Administrative Law Judge sustained the Commissioner’s determination after a hearing.
    The Unemployment Insurance Appeal Board affirmed the ALJ’s decision.
    The Appellate Division affirmed the Board’s decision.
    The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether a felony conviction for conduct outside of work hours and not directly against the employer can be considered “in connection with” employment under Labor Law § 593(4), thus disqualifying the claimant from receiving unemployment insurance benefits.

    Holding

    Yes, because a felony is “in connection with” employment if it results in a breach of duty, express or implied, that the claimant owes to the employer, even if the felony was not committed against the employer or during work hours.

    Court’s Reasoning

    The Court of Appeals interpreted Labor Law § 593(4), emphasizing that the Legislature’s choice of the phrase “in connection with” was broader than alternatives like “committed against the employer” or “committed in the course of employment.” The court reasoned that the statute aims to award benefits only to those unemployed “through no fault of their own” (Labor Law § 501). The court found that the claimant’s felony conviction breached his duty to his employer in several ways:

    The claimant was automatically disbarred under Judiciary Law § 90(4)(a), rendering him unqualified for his position as Chief Title Counsel. This impaired his ability to effectively perform his job.
    As Chief Title Counsel, the claimant personally dealt with numerous insurance companies. His conviction for defrauding an insurance company tarnished Allied’s reputation for trustworthiness in the business community.

    The court drew guidance from prior decisions construing Labor Law § 593(3), finding conduct to be disqualifying when it “evinces a willful disregard of standards of behavior which employers have the right to expect of their employees.”
    The court concluded that the claimant’s actions violated a basic duty owed to his employer, which was to remain qualified for his position and to uphold the company’s reputation.

  • People v. Janoff, 75 N.Y.2d 913 (1990): Sufficiency of Evidence for Insurance Fraud Conviction

    People v. Janoff, 75 N.Y.2d 913 (1990)

    An attorney can be convicted of insurance fraud if the attorney has actual knowledge of a client’s fraudulent claims and shares the client’s criminal intent.

    Summary

    The New York Court of Appeals affirmed the convictions of attorney Janoff and his client Aksoy for insurance fraud and related charges. Janoff filed over 15 fraudulent personal injury claims on behalf of Aksoy and her son. The Court held that the evidence was sufficient to prove Janoff’s actual knowledge of the fraud, as he had previously represented Aksoy in cases involving the same injuries and failed to disclose these prior claims. The Court also addressed issues related to jury instructions and the indictment’s structure, finding no reversible error.

    Facts

    Defendant Janoff, an attorney, represented Aksoy and her son in multiple personal injury claims filed over a 10-year period. Aksoy and her son repeatedly denied under oath having suffered prior injuries. Janoff had previously represented Aksoy in earlier litigations against different defendants, where the very same injuries were claimed. Janoff failed to comply with a discovery stipulation that would have revealed these prior injuries.

    Procedural History

    Janoff and Aksoy were convicted of insurance fraud, attempted petit larceny, and scheme to defraud (for Aksoy only). Janoff appealed, arguing insufficient evidence, errors in jury instructions, and an improper indictment. The Appellate Division affirmed the convictions. The New York Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    1. Whether the evidence was sufficient to support Janoff’s conviction for insurance fraud.
    2. Whether the trial court’s initial instructions on intent were adequate.
    3. Whether the indictment properly included one count of insurance fraud for each fraudulent claim filed.

    Holding

    1. Yes, because the record contained sufficient evidence that Janoff had actual knowledge that the lawsuits he commenced on Aksoy’s behalf were fraudulent.
    2. Yes, because the unobjected-to language used in the court’s initial instructions on intent adequately conveyed that Janoff must have had actual knowledge of his client’s fraud and shared that criminal intent.
    3. Yes, because the rule against duplicitous pleadings does not require a separate count for each component document submitted in support of the same fraudulent insurance matter where the prosecution’s theory was that the commencement of each lawsuit constituted the criminal offense.

    Court’s Reasoning

    The Court reasoned that the evidence clearly demonstrated Janoff’s knowledge of the fraudulent nature of Aksoy’s claims. Janoff’s prior representation of Aksoy in cases involving the same injuries, coupled with his failure to disclose these prior claims, established his awareness of the fraud. The Court cited People v. Malizia, 62 N.Y.2d 755, 757, emphasizing that actual knowledge and shared criminal intent are necessary for an insurance fraud conviction.

    Regarding the jury instructions, the Court found that the instructions adequately conveyed the necessary intent element, and any error was harmless, citing People v. Radcliffe, 232 NY 249, 254. The Court also rejected Janoff’s argument that the indictment was duplicitous. The Court explained that under Penal Law § 176.05, the crime of insurance fraud is committed upon the filing of a false “written statement as part of, or in support of, * * * a [fraudulent insurance] claim for payment.” A written statement may consist of one or multiple documents submitted to advance a single fraudulent claim. The criminal act encompasses filing documents and making a false claim for payment. The submission of each document was not a repeated instance of a particular offense that was required to be contained in a single count. Rather, the submissions were multiple overt acts done in furtherance of the commission of a single crime, the essence of which is the filing of a false claim for payment. The Court referenced People v. Alfaro, 108 AD2d 517, 520, aff’d 66 NY2d 985, to support its interpretation of the statute.

    The Court distinguished the case from situations requiring separate counts for each instance of an offense, referencing People v. Keindl, 68 NY2d 410, noting that the submissions were overt acts furthering a single crime: filing a false claim. It also referenced People v. Ferone, 136 AD2d 282, 286, emphasizing that the procurement of an insurance policy without a subsequent claim for payment is not a fraudulent act.

    The Court emphasized that higher degrees of insurance fraud correlate with the value of property wrongfully secured, indicating legislative intent to equate the criminal act with the filing of the entire claim, not each statement.

  • Patterson v. Leahey & Johnson, P.C., 80 N.Y.2d 167 (1992): Liability for Attorney Misconduct Despite Validation of Notarized Documents

    Patterson v. Leahey & Johnson, P.C., 80 N.Y.2d 167 (1992)

    Executive Law § 142-a, which validates the official acts of a notary public whose commission has expired, does not bar a fraud action against a notary-attorney under Judiciary Law § 487 and Executive Law § 135 for knowingly submitting defective documents to a court, but the plaintiff must still adequately plead and prove damages resulting from the misconduct.

    Summary

    Patterson sued Leahey & Johnson under Judiciary Law § 487, alleging the firm committed fraud by submitting affidavits notarized by Lynch, whose notary commission had expired, in a prior negligence suit. This resulted in the dismissal of Patterson’s negligence claim. The Court of Appeals held that Executive Law § 142-a does not automatically bar such a fraud action, as it primarily validates notarial acts to protect public reliance. However, the Court affirmed the dismissal because Patterson’s complaint failed to sufficiently plead damages. Sanctions against Patterson were reversed, as his claim had a legal basis, even if it ultimately failed on the merits.

    Facts

    In a prior negligence suit brought by Patterson, the defendant law firm, Leahey & Johnson, submitted affidavits notarized by Lynch. At the time of notarization, Lynch’s notary public commission had expired. Based on these affidavits, the Supreme Court dismissed Patterson’s negligence action on summary judgment. Patterson’s motions to vacate the judgment were denied, based on Executive Law § 142-a.

    Procedural History

    Patterson then commenced an action against Leahey & Johnson under Judiciary Law § 487, alleging fraud. The Supreme Court dismissed the complaint and imposed sanctions on Patterson. The Appellate Division affirmed the dismissal but reduced the amount of sanctions. Patterson appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether Executive Law § 142-a bars a fraud action against a notary-attorney under Judiciary Law § 487 and Executive Law § 135 for knowingly submitting defective documents to a court.

    2. Whether Patterson adequately pleaded damages in his fraud action.

    3. Whether the imposition of sanctions against Patterson was proper.

    Holding

    1. No, because Executive Law § 142-a primarily validates notarial acts to protect public reliance and does not provide an impenetrable shield against actions predicated on deceitful conduct by an attorney-notary.

    2. No, because Patterson’s allegations on the issue of damages were merely conclusory and did not support the conclusion that he would have been successful in the underlying negligence case absent the alleged fraud.

    3. No, because Patterson’s claim that Executive Law § 142-a does not bar a suit for a notary-attorney’s misconduct under Judiciary Law § 487 and Executive Law § 135 has a legal basis, even though the claim ultimately fails on the merits.

    Court’s Reasoning

    The Court of Appeals reasoned that Executive Law § 142-a was intended to allow the public to rely on the presumption of validity attached to a notary’s certificate. The statute does not expressly preclude suits for damages predicated on a notary-attorney’s misconduct in knowingly submitting defective documents to a court. The legislative history indicated that section 142-a was not intended to relieve notaries public from criminal liability for official misconduct. However, the Court found that Patterson’s fraud action was properly dismissed because his allegations on the issue of damages were merely conclusory, violating CPLR 3016(b). The pleadings and affidavits did not support the conclusion that Patterson would have been successful in the negligence case absent Lynch’s alleged fraud. The court stated, “[S]ection 142-a validated those defectively notarized documents, and Supreme Court’s reliance upon them in dismissing the earlier action was proper.” Regarding sanctions, the Court held that Patterson’s claim had a legal basis, and bringing the claim was not an abuse of judicial process approaching sanctionable conduct.

  • Clients’ Security Fund v. Grandeau, 72 N.Y.2d 62 (1988): Partnership Liability for Attorney Misconduct

    Clients’ Security Fund v. Grandeau, 72 N.Y.2d 62 (1988)

    A law partner may be held liable for the dishonest conduct of another partner within the firm, even if the partner did not personally engage in the dishonest conduct, allowing the Clients’ Security Fund to pursue subrogation claims against them.

    Summary

    The Clients’ Security Fund of the State of New York reimbursed clients of attorney Barry Grandeau after he misappropriated their funds. As a condition, the clients assigned their rights against Grandeau, his partner Michael Dahowski, and their partnership to the Fund. The Fund then sued both attorneys and the partnership to recover the disbursed funds. The Court of Appeals held that the Fund could pursue a subrogation action against Dahowski, Grandeau’s partner, even though Dahowski himself did not engage in the dishonest conduct, because partners are generally liable for each other’s torts. The court reasoned that the Fund’s broad statutory discretion allows it to seek recovery from any party liable for the dishonest conduct, not just the attorney who directly committed it.

    Facts

    Barry Grandeau and Michael Dahowski formed a law partnership. Grandeau misappropriated client funds, leading to his disbarment. Dahowski was censured for failing to oversee the firm’s record-keeping, which contributed to Grandeau’s actions, although he was not directly responsible for the misappropriations. The Clients’ Security Fund reimbursed Grandeau’s clients for their losses stemming from Grandeau’s misappropriation. As a condition of reimbursement, clients assigned their rights against Grandeau, Dahowski, and the partnership to the Fund.

    Procedural History

    The Fund sued Grandeau, Dahowski, and the partnership to recover the reimbursed funds. The Supreme Court granted summary judgment to Dahowski, dismissing the complaint against him. The Appellate Division modified this decision, denying Dahowski summary judgment and allowing the Fund to pursue its claim against him. The Appellate Division then certified a question to the Court of Appeals regarding the propriety of its modification.

    Issue(s)

    Whether the Clients’ Security Fund is restricted to recouping funds solely from the attorney who personally engaged in dishonest conduct, or whether it can pursue a subrogation action against the attorney’s former law partner who did not directly engage in the dishonest conduct but whose negligence contributed to it.

    Holding

    No, because traditional principles of partnership law dictate that one partner is liable for the tortious conduct of another, and the Clients’ Security Fund has broad discretion to determine the terms of reimbursement, including pursuing claims against those vicariously liable for the dishonest conduct of an attorney.

    Court’s Reasoning

    The Court reasoned that State Finance Law § 97-t(6) grants the Board of Trustees of the Fund broad discretion to define the terms of reimbursement and to require claimants to execute instruments, take actions, or enter into agreements as the Board deems necessary. The Court emphasized that the Fund’s subrogation claim was based on the clients’ right to pursue claims against any party liable for Grandeau’s dishonest conduct, including Dahowski as his partner. The court stated that, under partnership law, each client victimized by Grandeau’s misappropriation acquired a viable cause of action against Dahowski. The Court rejected the argument that the Legislature intended to restrict the Fund to recoupment solely from the attorney who personally engaged in the dishonest conduct, stating that this would undermine the Fund’s ability to promote public confidence in the legal profession. The Court noted that restricting the Fund’s power would jeopardize its financial integrity and limit its effectiveness, as the directly culpable attorney might be unable to provide any refunding. As the court noted, the legislature did not intend to restrict “the source of recoupment solely to the attorney personally culpable for the dishonest conduct—an individual who often may be bankrupt, incarcerated or deceased and incapable of providing any refunding.”

  • People v. DeStefano, 38 N.Y.2d 640 (1976): Preserving a Fair Trial Amidst Attorney Misconduct

    People v. DeStefano, 38 N.Y.2d 640 (1976)

    A defendant may not successfully claim deprivation of a fair trial when the disruptive atmosphere in the courtroom is primarily created by the defense counsel’s persistent misconduct, especially when the trial court issues prompt, curative instructions.

    Summary

    DeStefano was convicted, and on appeal, he argued that he was denied a fair trial due to the courtroom atmosphere, bias of the trial judge, legal errors, and prosecutorial misconduct. The Court of Appeals affirmed the conviction, holding that although the trial judge exhibited some acrimony, it was in response to the defense counsel’s disruptive and disobedient behavior throughout the three-week trial. The court found that the trial judge was justified in asserting control to ensure a fair trial, and that any potential prejudice was dispelled by prompt curative instructions to the jury to focus on the defendant’s guilt or innocence.

    Facts

    DeStefano’s trial lasted approximately three weeks. During the trial, the defense counsel repeatedly disobeyed evidentiary rulings. The defense counsel engaged in disruptive tactics throughout the trial and summation. The trial court exhibited a degree of acrimony during heated exchanges with the defense counsel.

    Procedural History

    The defendant was convicted at trial. He appealed the conviction, arguing he was denied a fair trial based on the courtroom atmosphere, bias of the trial judge, legal errors, and prosecutorial misconduct. The Appellate Division affirmed the conviction. The New York Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    Whether a defendant is deprived of a fair trial when the disruptive atmosphere is largely created by the defense counsel’s misconduct, and the trial court issues prompt curative instructions.

    Holding

    No, because when defense counsel creates a disruptive and infuriating environment through persistent misconduct and disobedience of evidentiary rulings, the defendant cannot successfully claim deprivation of a fair trial, especially when the trial court issues prompt, curative instructions to the jury.

    Court’s Reasoning

    The Court of Appeals reasoned that while the trial court did exhibit some acrimony, it was a justified response to the defense counsel’s persistent misconduct. The court emphasized that defense counsel repeatedly failed to obey evidentiary rulings and engaged in tactics designed to disrupt and infuriate. Under these circumstances, the trial court was not only justified but obligated to assert control over the proceedings to ensure a fair trial. The Court cited People v. Marcelin, 23 AD2d 368, highlighting the trial court’s duty to maintain order. The court also noted that the trial judge’s prompt, curative instructions to the jury served to dispel any prejudice and to emphasize that their focus should be on assessing the defendant’s guilt or innocence, rather than the conduct of counsel or the court. The Court stated, “When such a situation is created by defense counsel, defendant may not, absent other circumstances, successfully allege he was deprived of a fair trial.”

  • Wiener v. Weintraub, 22 N.Y.2d 330 (1968): Absolute Privilege for Statements to Bar Grievance Committees

    Wiener v. Weintraub, 22 N.Y.2d 330 (1968)

    Statements made in a complaint to a bar association’s grievance committee are absolutely privileged, shielding the complainant from libel actions, to encourage reporting of attorney misconduct and maintain high standards within the legal profession.

    Summary

    Wiener, a New York attorney, sued Weintraub for libel based on a letter Weintraub sent to the Grievance Committee of the Association of the Bar of the City of New York, alleging dishonesty and fraud. The defendants moved to dismiss, arguing the letter was absolutely privileged. The New York Court of Appeals affirmed the dismissal, holding that complaints to bar grievance committees are part of a “judicial proceeding” and thus protected by absolute privilege. This privilege is essential to encourage reporting of attorney misconduct without fear of reprisal, thereby upholding the integrity of the legal system.

    Facts

    The plaintiff, Wiener, an attorney, alleged that the defendants, Weintraub, falsely and maliciously accused him of dishonesty and fraud. This accusation was made in a letter the defendants sent to the Grievance Committee of the Association of the Bar of the City of New York.

    Procedural History

    The defendants moved to dismiss the complaint under CPLR 3211(a), arguing the letter was absolutely privileged and therefore not actionable. Special Term granted the motion and dismissed the complaint. The Appellate Division unanimously affirmed this decision. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether statements made in a letter to a bar association’s Grievance Committee, accusing an attorney of professional misconduct, are protected by absolute privilege, thus precluding a libel action based on those statements.

    Holding

    Yes, because the Grievance Committee acts as a quasi-judicial body, an arm of the Appellate Division, and the filing of a complaint initiates a judicial proceeding. Thus, statements made within that context are absolutely privileged, shielding the complainant from libel actions.

    Court’s Reasoning

    The Court of Appeals reasoned that statements made during judicial proceedings are privileged if they are material and pertinent to the questions involved, regardless of the motive behind them. Citing precedent such as Marsh v. Ellsworth and Youmans v. Smith, the court extended this privilege to proceedings before a bar association’s Grievance Committee, characterizing such committees as quasi-judicial bodies. The court noted that these committees are now the primary venue for addressing complaints of professional misconduct, previously handled by the General Term of the Supreme Court. The court adopted the reasoning in Doe v. Rosenberry, confirming that grievance committee proceedings constitute a “judicial proceeding.”

    The court emphasized the public interest in encouraging the reporting of attorney misconduct. It stated, “Assuredly, it is in the public interest to encourage those who have knowledge of dishonest or unethical conduct on the part of lawyers to impart that knowledge to a Grievance Committee…If a complainant were to be subject to a libel action by the accused attorney, the effect in many instances might well be to deter the filing of legitimate charges.”

    The court acknowledged the potential for false and malicious complaints but found that the need to maintain high ethical standards in the legal profession outweighed the potential harm to individual attorneys. Additionally, the court noted that Judiciary Law § 90(10) protects the confidentiality of grievance proceedings, further mitigating any risk of prejudice. In conclusion, because the statements made to the Grievance Committee were relevant to the matter at hand, the defendants were protected by absolute privilege, and the lower courts’ dismissal of the complaint was affirmed.

  • Matter of Del Bello, 22 N.Y.2d 466 (1968): Attorney Misconduct and Use of Incompetent’s Funds

    Matter of Del Bello, 22 N.Y.2d 466 (1968)

    An attorney acting as a committee for an incompetent person must prioritize the incompetent’s needs and welfare, and must not use the incompetent’s funds for the attorney’s own benefit or to the detriment of the incompetent’s estate plan.

    Summary

    This case concerns the disbarment of an attorney, Del Bello, who served as the committee for an incompetent woman, Ellen Snyder. Del Bello was accused of misusing funds from a Totten trust account established by Snyder for the benefit of David Gorfinkel. The court found that Del Bello had been surcharged for improperly using the Totten trust funds when other assets were available to care for Snyder and because he had a conflict of interest related to real property transactions with Snyder before she was declared incompetent. While the court acknowledged Del Bello’s questionable conduct, it reversed the disbarment order, finding insufficient evidence that he misappropriated the funds for personal use, and remanded for reconsideration of discipline based on other charges of misconduct.

    Facts

    Ellen Snyder created a Totten trust bank account for David Gorfinkel. Snyder later became Del Bello’s client in 1953, and he was appointed as her committee in 1955 after she was declared incompetent. Del Bello transferred the funds from Snyder’s Totten trust account into an account under his name as her committee without a court order. After Snyder’s death, Gorfinkel’s estate successfully sued to recover the Totten trust funds. The bank, in turn, sued Del Bello to recover what they paid out to Gorfinkel. Prior to her incompetency, Del Bello had also prepared wills for Snyder that favored him and arranged for her to deed him the remainder interest in her real property.

    Procedural History

    The Appellate Division disbarred Del Bello based on findings related to the Gorfinkel case and the misuse of the Totten trust funds. The Appellate Division cited Del Bello’s conflict of interest stemming from spending $5,302.86 withdrawn from the Totten trust to repair real property of which he was the owner. Del Bello appealed to the New York Court of Appeals.

    Issue(s)

    Whether the attorney misappropriated the funds for personal gain instead of using the funds for the care of the incompetent, and therefore should be disbarred.

    Holding

    No, because the court found that the Appellate Division’s finding that Del Bello misappropriated $5,302.86 from the Totten trust was not supported by evidence and the record indicates the funds were used for the ward’s maintenance and support. The matter was remanded to the Appellate Division to impose discipline based on other charges.

    Court’s Reasoning

    The Court of Appeals found that Del Bello’s actions in managing Snyder’s assets were questionable, particularly his handling of the Totten trust account and the real property transactions. The court emphasized that a committee’s primary duty is to act in the best interest of the incompetent person. “Unless the proceeds of such a bank account are necessarily or properly required for the support or welfare of the incompetent, neither the committee nor the court whose arm the committee is can alter the devolution, upon death, of the property of an incompetent”. The court found that Del Bello should not have been accused of spending the Totten trust account on real estate improvements of which he owned the remainder. However, the court criticized Del Bello for drafting wills in his favor and obtaining a deed for the remainder interest in Snyder’s property, creating a conflict of interest. The court also noted that he should have disclosed his remainder interest when the welfare authorities advanced money on a mortgage given by Snyder. The court decided that the Appellate Division’s determination to disbar Del Bello was inappropriate in light of the lack of evidence that he had misappropriated the trust funds for personal use. The court stated: “It is one thing for the committee of an incompetent to misappropriate her funds by devoting them to his own private use; it is quite another matter to become liable to a surcharge for resorting to one particular asset of an incompetent rather than to another in order to provide for her support.”

  • In the Matter of Klein, 18 N.Y.2d 598 (1966): Disbarment Procedures and Attorney Misconduct

    18 N.Y.2d 598 (1966)

    An attorney facing disbarment must raise triable issues by interposing an answer denying charges of misconduct; otherwise, disbarment is warranted.

    Summary

    This case concerns an attorney, William R. Klein, who was disbarred by the Appellate Division. Klein appealed, arguing he was not properly heard. The Court of Appeals affirmed the disbarment order, noting Klein failed to deny the charges against him in an answer, thus not raising any triable issues before the initial order. However, the Appellate Division granted Klein a chance to file an answer and have a hearing, ensuring he had an additional opportunity to be heard. The Court of Appeals clarified its decision was based solely on the charges in the original petition.

    Facts

    The specific facts regarding the attorney’s misconduct are not detailed in this per curiam decision. The central fact is that disbarment proceedings were initiated against attorney William R. Klein.

    Procedural History

    The Appellate Division ordered Klein’s disbarment. Klein appealed this order to the Court of Appeals. The Appellate Division then granted Klein’s motion to vacate the disbarment order, allowing him to file an answer and referring the matter to a Supreme Court Justice for a hearing and report. The Court of Appeals then affirmed the original order.

    Issue(s)

    Whether the Appellate Division was warranted in ordering the appellant’s disbarment when the appellant failed to interpose an answer denying the charges of misconduct against him, thereby failing to raise any triable issues.

    Holding

    Yes, because the appellant had the opportunity to be heard as per subdivision 2 of section 90 of the Judiciary Law, but did not raise any triable issues before the initial disbarment order by failing to deny the charges against him in an answer.

    Court’s Reasoning

    The Court of Appeals reasoned that under Section 90(2) of the Judiciary Law, Klein had the right to be heard. However, this right requires the attorney to actively engage in the process by raising triable issues, which is done by filing an answer denying the charges of misconduct. Since Klein failed to do so before the initial disbarment order, the Appellate Division was justified in its decision. The court also emphasized that the Appellate Division’s decision to grant Klein an additional opportunity to be heard further supported the fairness of the proceedings. The court explicitly stated that their decision was based solely on the charges contained in the original petition, disregarding any other considerations mentioned in the Appellate Division’s opinion, ensuring the ruling was narrowly tailored to the specific charges properly before the court. This highlights the importance of due process and basing decisions strictly on the evidence presented in the formal charges.