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Consequences of a Criminal Arrest for Attorneys in New York

Posted By Galluzzo & Arnone LLP || 30-Jan-2013

Attorneys are human beings and make mistakes just like everybody else. Unfortunately for them, those mistakes that result in criminal arrests can have especially dire professional consequences. In New York, New York State Judiciary Law § 90(4) requires attorneys to immediately report to the bar certain criminal convictions, and certain convictions can result in suspension or disbarment from the practice of law.

Judiciary Law § 90 explains the following:

	4. a. Any person being an attorney and counsellor-at-law who shall be convicted
	 of a felony as defined in paragraph e of this subdivision, shall upon
	 such conviction, cease to be an attorney and counsellor-at-law, or to
	 be competent to practice law as such. b. Whenever any attorney and counsellor-at-law
	 shall be convicted of a felony as defined in paragraph e of this subdivision,
	 there may be presented to the appellate division of the supreme court
	 a certified or exemplified copy of the judgment of such conviction, and
	 thereupon the name of the person so convicted shall, by order of the court,
	 be struck from the roll of attorneys. c. Whenever an attorney shall be
	 convicted of a crime in a court of record of the United States or of any
	 state, territory or district, including this state, whether by a plea
	 of guilty or nolo contendere or from a verdict after trial or otherwise,
	 the attorney shall file, within thirty days thereafter, with the appellate
	 division of the supreme court, the record of such conviction. The failure
	 of the attorney to so file shall be deemed professional misconduct provided,
	 however, that the appellate division may upon application of the attorney,
	 grant an extension upon good cause shown. d. For purposes of this subdivision,
	 the term serious crime shall mean any criminal offense denominated a felony
	 under the laws of any state, district or territory or of the United States
	 which does not constitute a felony under the laws of this state, and any
	 other crime a necessary element of which, as determined by statutory or
	 common law definition of such crime, includes interference with the administration
	 of justice, false swearing, misrepresentation, fraud, willful failure
	 to file income tax returns, deceit, bribery, extortion, misappropriation,
	 theft, or an attempt or conspiracy or solicitation of another to commit
	 a serious crime.
	e. For purposes of this subdivision, the term felony shall mean any criminal
	 offense classified as a felony under the laws of this state or any criminal
	 offense committed in any other state, district, or territory of the United
	 States and classified as a felony therein which if committed within this
	 state, would constitute a felony in this state. f. Any attorney and counsellor-at-law
	 convicted of a serious crime, as defined in paragraph d of this subdivision,
	 whether by plea of guilty or nolo contendere or from a verdict after trial
	 or otherwise, shall be suspended upon the receipt by the appellate division
	 of the supreme court of the record of such conviction until a final order
	 is made pursuant to paragraph g of this subdivision. Upon good cause shown
	 the appellate division of the supreme court may, upon application of the
	 attorney or on its own motion, set aside such suspension when it appears
	 consistent with the maintenance of the integrity and honor of the profession,
	 the protection of the public and the interest of justice. g. Upon a judgment
	 of conviction against an attorney becoming final the appellate division
	 of the supreme court shall order the attorney to show cause why a final
	 order of suspension, censure or removal from office should not be made.
	 h. If the attorney requests a hearing, the appellate division of the supreme
	 court shall refer the proceeding to a referee, justice or judge appointed
	 by the appellate division for hearing, report and recommendation.
	After said hearing, the appellate division may impose such discipline as
	 it deems proper under the facts and circumstances. 5. a. If such removal
	 or debarment was based upon conviction for a serious crime or upon a felony
	 conviction as defined in subdivision four of this section, and such felony
	 conviction was subsequently reversed or pardoned by the president of the
	 United States, or governor of this or another state of the United States,
	 the appellate division shall have power to vacate or modify such order
	 or debarment, provided, however, that if such attorney or counsellor-at-law
	 has been removed from practice in another jurisdiction, a pardon in said
	 jurisdiction shall not be a basis for application for re-admission in
	 this jurisdiction unless he shall have been readmitted in the jurisdiction
	 where pardoned. b. If such removal or debarment was based upon conviction
	 for a felony as defined in subdivision four of this section, the appellate
	 division shall have power to vacate or modify such order or debarment
	 after a period of seven years provided that such person has not been convicted
	 of a crime during such seven-year period.
	c. An attorney and counsellor-at-law who has been convicted of a felony
	 without the state and whose name has been struck from the roll of attorneys
	 prior to July thirteenth, nineteen hundred seventy-nine by virtue of the
	 provisions of subdivision four of this section may, if he alleges that
	 such felony committed without the state would not constitute a felony
	 if committed within the state, petition the appellate division to vacate
	 or modify such debarment. If the appellate division finds that the felony
	 of which the attorney and counsellor-at-law has been convicted without
	 the state would not constitute a felony if committed within the state,
	 it shall grant a hearing and may retroactively vacate or modify such debarment
	 and impose such discipline as it deems just and proper under the facts
	 and circumstances. The attorney and counsellor-at-law shall petition for
	 reinstatement by filing in the appellate division a copy of the order
	 of removal together with a request for a hearing pursuant to the provisions
	 of this paragraph. Upon such application, the order of removal shall be
	 deemed an order of suspension for the purposes of a proceeding pursuant
	 to this paragraph. 6. Before an attorney or counsellor-at-law is suspended
	 or removed as prescribed in this section, a copy of the charges against
	 him must be delivered to him personally within or without the state or,
	 in case it is established to the satisfaction of the presiding justice
	 of the appellate division of the supreme court to which the charges have
	 been presented, that he cannot with due diligence be served personally,
	 the same may be served upon him by mail, publication or otherwise as the
	 said presiding justice may direct, and he must be allowed an opportunity
	 of being heard in his defense. In all cases where the charges are served
	 in any manner other than personally, and the attorney and counsellor-at-law
	 so served does not appear, an application may be made by such attorney
	 or in his behalf to the presiding justice of the appellate division of
	 the supreme court to whom the charges were presented at any time within
	 one year after the rendition of the judgment, or final order of suspension
	 or removal, and upon good cause shown and upon such terms as may be deemed
	 just by such presiding justice, such attorney and counsellor-at-law must
	 be allowed to defend himself against such charges.
	The justices of the appellate division in any judicial department, or a
	 majority of them, may make an order directing the expenses of any disciplinary
	 proceedings, and the necessary costs and disbursements of the petitioner
	 in prosecuting such charges, including the expense of any preliminary
	 investigation in relation to professional conduct of an attorney and counsellor-at-law,
	 to be paid out of funds appropriated to the office of court administration
	 for that purpose. 6-a. a. Where the appellate division of supreme court
	 orders the censure, suspension from practice or removal from office of
	 an attorney
	or counsellor-at-law following disciplinary proceedings at which it found,
	 based upon a preponderance of the legally admissible evidence, that such
	 attorney or counsellor-at-law wilfully misappropriated or misapplied money
	 or property in the practice of law, its order may require him or her to
	 make monetary restitution in accordance with this subdivision. Its order
	 also may require that he or she reimburse the lawyers' fund for client
	 protection of the state of New York for awards made to the person whose
	 money or property was wilfully misappropriated or misapplied. b. Monetary
	 restitution, as authorized hereunder, shall be made to the person whose
	 money or property was wilfully misappropriated or misapplied and shall
	 be for the amount or value of such money or property, as found in the
	 disciplinary proceedings. In the event that such person dies prior to
	 completion of such restitution, any amount remaining to be paid shall
	 be paid to the estate of the deceased. c. Any payment made as restitution
	 pursuant to this subdivision shall not limit, preclude or impair any liability
	 for damages in any civil action or proceeding for an amount in excess
	 of such payment; nor shall any order of the appellate division made hereunder
	 deprive a criminal court of any authority pursuant to article sixty of
	 the penal law. d. An order issued pursuant to this subdivision may be
	 entered as a civil judgment. Such judgment shall be enforceable as a money
	 judgment in any court of competent jurisdiction by any person to whom
	 payments are due thereunder, or by the lawyers' fund for client protection
	 where it has been subrogated to the rights of such person. e. Where an
	 attorney or counsellor-at-law is permitted to resign from office, the
	 appellate division may, if appropriate, issue an order as provided herein
	 requiring him or her to make payments specified by this subdivision. f.
	 Notwithstanding any other provision of this subdivision, no order may
	 be issued hereunder unless the person required to make payments under
	 such order first is given an opportunity to be heard in opposition thereto.
	7. In addition to the duties prescribed by section seven hundred of the
	 county law, it shall be the duty of any district attorney within a department,
	 when so designated by the justices of the appellate division of the supreme
	 court in such department, or a majority of them, to prosecute all proceedings
	 for the removal or suspension of attorneys and counsellors-at-law or the
	 said justices, or a majority of them may appoint any attorney and counsellor-at-law
	 to conduct a preliminary investigation and to prosecute any disciplinary
	 proceedings and, during or upon the termination of the investigation or
	 proceedings, may fix the compensation to be paid to such attorney and
	 counsellor-at-law for the services rendered, which compensation shall
	 be a charge against the county specified in his certificate and shall
	 be paid thereon. 8. Any petitioner or respondent in a disciplinary proceeding
	 against an attorney or counsellor-at-law under this section, including
	 a bar association or any other corporation or association, shall have
	 the right to appeal to the court of appeals from a final order of any
	 appellate division in such proceeding upon questions of law involved therein,
	 subject to the limitations prescribed by section three of article six
	 of the constitution of this state.

Thus, although there are certain expected penalties for felony and “serious crime” convictions, an attorney has the right to request a hearing before a referee, justice or judge on the issue of a suspension or disbarment, and their judgment or recommendation can be appealed. Notably, an arrest by itself does not need to be reported to the bar, only those sorts of as convictions described above. However, even in cases in which it is not mandatory for an attorney to make a report – for example, prior to conviction, or in cases that do not result in a criminal conviction, the bar may initiate a fitness inquiry of the attorney based upon the alleged conduct underlying the arrest.

The Judiciary Law further explains:

	9. No objection shall be taken to the appointment of any member of the
	 bar to act as referee or judge in a disciplinary proceeding under this
	 section on the ground that he is a member of a bar association or other
	 corporation or association which is the petitioner therein. 10. Any statute
	 or rule to the contrary notwithstanding, all papers, records and documents
	 upon the application or examination of any person for admission as an
	 attorney and counsellor at law and upon any complaint, inquiry, investigation
	 or proceeding relating to the conduct or discipline of an attorney or
	 attorneys, shall be sealed and be deemed private and confidential. However,
	 upon good cause being shown, the justices of the appellate division having
	 jurisdiction are empowered, in their discretion, by written order, to
	 permit to be divulged all or any part of such papers, records and documents.
	 In the discretion of the presiding or acting presiding justice of said
	 appellate division, such order may be made either without notice to the
	 persons or attorneys to be affected thereby or upon such notice to them
	 as he may direct. In furtherance of the purpose of this subdivision, said
	 justices are also empowered, in their discretion, from time to time to
	 make such rules as they may deem necessary. Without regard to the foregoing,
	 in the event that charges are sustained by the justices of the appellate
	 division having jurisdiction in any complaint, investigation or proceeding
	 relating to the conduct or discipline of any attorney, the records and
	 documents in relation thereto shall be deemed public records.

If you or a loved one are an attorney facing criminal charges, it is absolutely crucial that you contact an experienced criminal defense attorney with experience defending other attorneys.

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