New York Law Review

Tag: Judiciary Law § 90

  • 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 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.”