New York Law Review

Tag: attorney reinstatement

  • Matter of Rowe, 73 N.Y.2d 336 (1989): Reinstatement Hearing Required After Suspension for Mental Disability

    Matter of Rowe, 73 N.Y.2d 336 (1989)

    An attorney suspended from practice due to mental disability is entitled to a hearing on their application for reinstatement when they present prima facie evidence that the disability has been removed.

    Summary

    Rowe, an attorney suspended due to a mental disability, sought reinstatement after being unconditionally discharged from court-ordered psychiatric care. The Appellate Division denied his application without a hearing. The New York Court of Appeals reversed, holding that due process requires a hearing when a suspended attorney presents prima facie evidence that their disability has been removed. The court reasoned that suspension due to disability is not punitive, and the attorney retains a property interest in their license, distinguishing it from disbarment for misconduct.

    Facts

    Rowe, an attorney, was suspended from practice in 1978 due to mental disability, following an acquittal on criminal charges by reason of mental disease or defect. He was initially confined to mental health facilities but later discharged under the condition of outpatient psychotherapy. In 1988, after being unconditionally discharged from mandated psychiatric care, Rowe again applied for reinstatement.

    Procedural History

    The Appellate Division, Second Department, initially denied Rowe’s first application for reinstatement in 1985, and the Court of Appeals affirmed. After Rowe was unconditionally discharged from psychiatric care, he applied again. The Appellate Division denied this second application without a hearing. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether an attorney suspended from practice due to mental disability is entitled to a hearing on an application for reinstatement when the attorney presents prima facie evidence that the disability has been removed.

    Holding

    Yes, because due process requires a hearing to resolve the factual question of whether the disability has been removed and to determine, on the whole record, whether the attorney is fit to practice law, when the attorney presents prima facie proof, by clear and convincing evidence, that the disability has been removed.

    Court’s Reasoning

    The Court of Appeals reasoned that an attorney suspended for mental disability holds a different position than a disbarred attorney. Disbarment is a punishment for violating the public trust, whereas suspension for disability is a precautionary measure. Furthermore, an attorney suspended for disability retains a property interest in their license, unlike a disbarred attorney. The court stated, “In addition, unlike a disbarred attorney, an attorney suspended because of medical disability retains a protected property interest in his license during the period of suspension.” The court emphasized that due process requires a hearing when a first-time applicant to the bar is denied admission based on unfitness. The court analogized the situation of an attorney suspended for disability who presents evidence of recovery: “Inasmuch as petitioner was suspended because of his disability and his application for reinstatement presents prima facie proof, by clear and convincing evidence, that the disability has been removed, due process requires a hearing to resolve that question of fact, and to enable the court to determine on the whole record whether he is fit to practice law.” The court therefore reversed the Appellate Division’s order and remitted the matter for further proceedings, including a hearing.

  • Matter of Barash, 20 N.Y.2d 154 (1967): Reinstatement of Attorneys After Felony Conviction Reversal

    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.”