|
Part 605
§ 605.1 Title,
Citation and Construction of Rules
- These Rules shall be known, and may be cited,
as the "Rules and Procedures of the Departmental Disciplinary
Committee of the Appellate Division of the Supreme Court
of the State of New York, First Judicial Department"
(hereinafter called the Committee).
- These Rules are promulgated for the purpose
of assisting the Office of Chief Counsel, the Respondent
and the Committee to develop the facts relating to, and to
reach a just and proper determination of, matters brought
to the attention of the Office of Chief Counsel or the Committee.
The Committee will not hold action of a Referee or a Hearing
Panel invalid by reason of any nonprejudicial irregularity.
Any error, defect, irregularity or variance which does not
effect substantial rights shall be disregarded.
- The use of the term attorney in this Part
shall apply to a law firm where a firm is the object of an
investigation or prosecution of alleged violation of the
Code of Professional Responsibility.
§ 605.2 Definitions
- Subject to additional definitions contained
in subsequent provisions of these Rules which are applicable
to specific sections, subsections or other provisions of
these Rules, the following words and phrases, when used in
these Rules, shall have, unless the context clearly indicates
otherwise, the meanings given to them in this section:
- Admonition. Discipline administered without
hearing, by letter issued by the Committee Chairperson,
in those cases in which misconduct in violation of a
Disciplinary Rule is found, but is determined to be of
insufficient gravity to warrant prosecution of formal
charges.
- Answer. A formal pleading filed by the
Respondent in answer to a Notice of Charges.
- Chief Counsel. The Chief Counsel appointed
by the Court or, in the absence of such Chief Counsel,
the Deputy Chief Counsel in the case of vacancy in office,
or disability of such Chief Counsel, the Deputy Chief
Counsel as designated by the Court.
- Code of Professional Responsibility.
The Code of Professional Responsibility as adopted by
the New York State Bar Association effective January
1, 1970, as the same may from time to time be amended.
- Committee Chairperson. The Chairperson
of the Committee.
- Complainant. A person communicating a
Grievance to the Committee or to the Office of Chief
Counsel, whether or not set forth in a complaint.
- Complaint. A written statement of the
nature described in Section 605.6 of this Part with respect
to a Grievance concerning an attorney communicated to
the Committee or to the Office of Chief Counsel.
- Court. The Appellate Division of the
Supreme Court of the State of New York, First Judicial
Department.
- Deputy Chief Counsel. The Deputy Chief
Counsel appointed by the Court, or in the absence of
such Deputy Chief Counsel, the Principal Attorney designated
by the Chief Counsel to serve as Deputy Chief Counsel;
in the case of vacancy in office, or disability of such
Deputy Chief Counsel, the Principal Attorney as designated
by the Court.
- Disciplinary Rule. Any provision of the
rules of the Court governing the conduct of attorneys,
any Disciplinary Rule of the Code of Professional Responsibility,
and any Canon of the Canons of Professional Ethics as
adopted by the New York State Bar Association.
- First Department. The First Judicial
Department of the State of New York.
- Formal Proceedings. Proceedings subject
to Sections 605.11 through 605.14 of this Part.
- Grievance. An allegation of misconduct.
- Hearing Panel. A Hearing Panel established
under Section 605.18 of this Part.
- Hearing Panel Chairperson. The member
of the Committee designated as chairperson of a Hearing
Panel under Section 605.18 of this Part.
- Investigation. Fact gathering under the
direction of the Office of Chief Counsel with respect
to alleged misconduct.
- Investigator. Any person designated by
the Office of Chief Counsel to assist it in the investigation
of alleged misconduct.
- Notice of Charges. A formal pleading
served under §605.12 of this Part by the Office
of Chief Counsel requesting action by the Committee.
- Office of Chief Counsel. The Office of
Chief Counsel provided for by § 605.20 of this Part.
- Parties. The Office of Chief Counsel
and the Respondent.
- Policy Committee. The Policy Committee
established under §605.21 of this Part.
- Reprimand. Discipline administered after
a hearing, by the Committee through the Hearing Panel
Chairperson, in those cases in which misconduct in violation
of a Disciplinary Rule is found.
- Respondent. An attorney or legal consultant
described in Section 603.1 of this Title who, or a law
firm that, has been named in a complaint or notice of
charges.
- Reviewing Member. The member or members
of the Committee designated under Section 605.6(f) of
this Part to review the disposition of a Complaint recommended
by the Office of the Chief Counsel.
- Rules. The provisions of these Rules
and Procedures.
- Staff Counsel. The attorneys (including
the Chief Counsel) constituting the Office of Chief Counsel,
and where appropriate the attorney or attorneys of the
Office of Chief Counsel, or such special counsel as may
be appointed by the Committee Chairperson with the approval
of the Policy Committee, assigned to a particular investigation
or proceeding.
 § 605.3 Location
of Office of Chief Counsel
- The location of the office of Chief Counsel
and the office of the Chief Counsel is:
Department Disciplinary Committee of the Appellate Division
of the Supreme Court
61 Broadway
New York, NY 10006
§ 605.4 Grounds
for Discipline
- Section 90 of the Judiciary Law of the State
of New York, the Disciplinary Rules and decisional law indicate
what shall constitute misconduct and shall be grounds for
discipline.
§ 605.5 Types
of Discipline; Subsequent Consideration of
Disciplinary Action
- Misconduct under Section 90 of the Judiciary
Law of the State of New York, the Disciplinary Rules or decisional
law shall be grounds for any of the following:
- Disbarment - by the Court.
- Suspension - by the Court.
- Censure - by the Court.
- Reprimand - by the Committee after hearing,
with or without referral to the Court for further action.
- Admonition - by the Committee without
hearing.
- The fact that an attorney has been issued
an Admonition (which has not yet been vacated), or that an
attorney has been the subject of a Reprimand (with or without
referral to the Court), or that an attorney has been the
subject of disciplinary action by the Court, may (together
with the basis thereof) be considered in determining whether
to impose discipline, and the extent of discipline to be
imposed, in the event other charges of misconduct are brought
against the attorney subsequently.
§ 605.6 Investigations
and Informal Proceedings
- Initiation of Investigations. The Office
of Chief Counsel shall, except as otherwise provided by subdivision
(g) of this section, undertake and complete an investigation
of all matters involving alleged misconduct of attorneys
within the jurisdiction of the Committee called to its attention
by a Complaint filed pursuant to subdivision (b) of this
section, by the Court, or by the Committee by written order,
and may, on its own initiative, undertake and complete an
investigation of any other matter within the jurisdiction
of the Committee otherwise coming to the attention of such
Office. The Office of Chief Counsel shall use such Investigators
as are deemed appropriate by the Chief Counsel.
- Contents of Complaint.
- General Rule. Each Complaint relating
to alleged misconduct of an attorney shall be in writing
and subscribed by the Complainant and shall contain a
concise statement of the facts upon which the Complaint
is based. Verification of the Complaint shall not be
required. If necessary the Office of Chief Counsel will
assist the Complainant in reducing the Grievance to writing.
The Complaint shall be deemed filed when received by
the Office of Chief Counsel.
- Other Situations. In the case of an allegation
of misconduct originating in the Court or the Committee,
or upon the initiative of the Office of Chief Counsel,
the writing reflecting the allegation shall be treated
as a Complaint.
- Investigation. The staff of the Office of
Chief counsel shall make such investigation of each Complaint
as may be appropriate.
- Notification to Respondent of Complaint.
- General Rule. No discipline shall be
recommended by the Office of the Chief Counsel until
the Respondent shall have been afforded the opportunity
to state the Respondent's position with respect to the
allegations.
- Transmission of Notice. Except where
it appears that there is no basis for proceeding further,
the Office of Chief Counsel shall promptly prepare and
forward to the Respondent a request for a statement in
response to the Complaint, advising the Respondent of:
- the nature of the Grievance and the
facts alleged in connection therewith; and
- The Respondent's right to state the
Respondent's position with respect to the allegations.
Unless a shorter time is fixed by the Committee Chairperson
and specified in such notice, the Respondent shall
have 20 days from the date of such notice within
which to file such a response in the Office of Chief
Counsel.
- Recommendation of the Office of Chief Counsel.
Following completion of any Investigation of the Complaint
(including consideration of any statement filed by the Respondent
pursuant to Section 605.6(d) of this Part), the Office of
Chief Counsel shall recommend one of the following dispositions:
- referral to another body on account of
lack of territorial jurisdiction;
- dismissal for any reason (with an indication
of the reason therefor), and referral to another body
if appropriate;
- admonition; or
- formal proceedings before a hearing panel.
- Action Following Recommendation.
- No Jurisdiction. If the Office of Chief
Counsel determines that the Complaint should be referred
under paragraph (e)(1) of this section, it shall notify
the complainant and the Respondent (if previously notified
of the Complaint) of such disposition in writing and
close the file on the matter. Whenever possible in cases
of lack of jurisdiction, the Office of Chief Counsel
shall bring the matter to the attention of the authorities
of the appropriate jurisdiction, or to any other duly
constituted body which may be able to provide a forum
for the consideration of the Grievances, and shall advise
the Complainant of such referral.
- Other Cases. In the case of recommendations
under paragraph (e)(2) of this section, the Committee
chairperson shall designate a lawyer member of the Committee
to review the recommendations. In the case of recommendations
under paragraph (e)(3) of this section, the Committee
chairperson (or a member of the Committee designated
by the Committee chairperson) and at least one other
member of the Committee shall review the recommendations.
In the case of recommendations under paragraph (e)(4)
of this section, or under Section 605.15(e)(2) of this
part, the Committee chairperson shall designate at least
two members of the policy committee, at least one of
whom is a lawyer, to review the recommendations.
- Preliminary Screening of Complaints. Any
complaint received by the Office of Chief Counsel against
a member of the Committee or Staff counsel involving alleged
misconduct shall be transmitted forthwith to the Committee
Chairperson, who shall assign it either to the Office of
Chief Counsel or to special counsel who shall
- conduct or direct the appropriate investigation,
and
- give a written recommendation as to the
disposition of the Complaint to the Committee Chairperson,
who shall determine the appropriate disposition of the
Complaint. Any such Complaint which relates to the Committee
Chairperson shall, in the first instance, be transmitted
to a Hearing Panel Chairperson, who shall conduct the
appropriate investigation and determine the appropriate
disposition of the Complaint.
§ 605.7 Review
of Recommended Disposition of Complaint
- Transmission to Reviewing Member. In the
case of recommendations under § 605.6(e)(3) of this
part, the chief counsel shall forward the file (including
the proposed disposition letter) to the reviewing member
designated under §605.6(f)(2) of this part for action.
In the case of recommendations under § 605.6(e)(4) of
this part, the chief counsel shall forward the file, the
proposed charges, and a memo summarizing the evidence adduced
in support of the charges to the reviewing policy member
designated under § 605.6(f)(2) of this part for action.
In the case of recommendations to file a motion to disaffirm
under § 605.15(e)(2) of this part, the chief counsel
shall forward the hearing panel's report, the proposed motion,
and memo of law or other memo summarizing the reasons for
the motion, to the reviewing member designated under § 605.6(f)(2)
of this part for action.
- Action by Reviewing Member.
- General Rule. The Reviewing Member may
approve or modify the recommendation of the Office of
Chief Counsel concerning the disposition of a Complaint.
- Modification. If the Reviewing Member
determines to modify the recommendation of the Office
of Chief Counsel, the Reviewing Member shall set forth
such determination in writing together with a brief statement
of the reason therefor. Such determination shall be one
of the following:
- dismissal of the complaint;
- further investigation;
- admonition; or
- formal proceedings before a hearing
panel.
- Return of File. Upon making such determination,
the Reviewing Member shall return the file to the Office
of Chief Counsel.
- Reconsideration. Upon notification of the
dismissal of a complaint pursuant to Section 605.6, the complainant
may submit a written application for reconsideration that
shall be filed with the Office of the Chief Counsel within
30 days of the date of the notification. The Committee chairperson
shall designate to examine a request for reconsideration
a member of the Committee other than the member who originally
reviewed the recommendation of the Office of the Chief Counsel.
§ 605.8 Final
Disposition Without Formal Proceedings
- Notification to Respondent of Disposition
of Complaint. Upon the approval of the recommendation of
the Office of Chief Counsel by the Reviewing Member, the
acceptance of the Reviewing Member's modification by the
Office of Chief Counsel, or the determination of the appropriate
disposition by the Committee Chairperson, then, unless the
disposition involves the institution of Formal Proceedings,
as appropriate:
- The Office of Chief Counsel by means
of written notice shall notify the Respondent of the
dismissal of the Complaint; or
- the Committee Chairperson shall transmit
to the Respondent an Admonition (which shall bear the
designation "ADMONITION").
- Admonitions.
- General Rule. A written record shall
be made of the fact of and basis for Admonitions.
- Notice of Right to Formal Proceedings.
In the Admonition, the Respondent shall be advised of:
- the Respondent's right under § 605.8(c)of
this Part; and
- the availability of such records
for consideration in determining whether to impose
discipline, and the extent of discipline to be imposed,
in the event other charges of misconduct are brought
against the Respondent subsequently.
- Action Available to Respondent.
- General Rule. A Respondent shall not
be entitled to appeal an Admonition, but the Respondent
may submit a written application for reconsideration
which shall be disposed of in accordance with paragraph
(3) of this subdivision; or, in the alternative, Respondent
may demand as of right that Formal Proceedings be instituted
before a Referee, in accordance with subsection (2) of
this subdivision.
- Formal Proceedings. A demand under paragraph
(1) of this subdivision that Formal Proceedings be instituted
shall be in writing and shall be filed in the Office
of Chief Counsel within 30 days after the date on which
the Admonition is sent to the Respondent. In the event
of such demand, the Admonition shall be vacated and the
Referee shall not be bound by its terms, but may take
any appropriate action authorized by the Rules of the
Committee or the Rules of the Appellate Division, First
Department, including a Reprimand or referral to the
Court.
- Application for Reconsideration. An application
under paragraph (1) of this subdivision for reconsideration
shall be in writing and shall be filed in the Office
of Chief Counsel within 30 days after the date on which
the Admonition is sent to the Respondent. As soon as
practicable after the receipt of an application, the
Office of Chief Counsel shall transmit the application
and the file relating to the matter to a member of the
Departmental Disciplinary Committee (who shall not be
a Reviewing Member designated with respect to such matter
under § 605.6(f)(2) of the Part) designated to review
the matter by the Committee Chairperson (or, upon general
or limited written direction of the Committee Chairperson,
by the Chief Counsel). The member so designated shall
either confirm or vacate the Admonition or otherwise
determine to modify the Admonition under §605.7(b)(2)
of this Part.
- Notification to Complainant of Disposition
of Complaint. The Office of the Chief Counsel, by means of
written notice, shall notify the Complainant of the dismissal
of a Complaint, or of the issuance of an Admonition. If the
complaint has been dismissed pursuant to Section 605.6(e)(2),
the notice shall state that the Complainant may seek reconsideration
of the dismissal by submitting to the Office of the Chief
Counsel a written request within 30 days of the date of the
notice.
§ 605.9 Abatement
of Investigation
- Refusal of Complainant or Respondent to Proceed,
etc. Neither unwillingness or neglect of the Complainant
to prosecute a charge, nor settlement, compromise or restitution,
nor the failure of the Respondent to cooperate, shall, in
itself, justify abatement of an Investigation into the conduct
of an attorney or the deferral or termination of proceedings
under these Rules.
- Matters Involving Related Pending Civil Litigation
or
Criminal Matters.
- General Rule. The processing of complaints
involving material allegations which are substantially
similar to the material allegations of pending criminal
or civil litigation need not be deferred pending determination
of such litigation.
- Effect of Determination. The acquittal
of a Respondent on criminal charges or a verdict or judgment
in the Respondent's favor in a civil litigation involving
substantially similar material allegations shall not,
in itself, justify termination of a disciplinary investigation
predicated upon the same material allegations.
§ 605.10 Resignations,
Reinstatements, Convictions of Crimes
- Resignations by Attorneys Under Disciplinary
Investigations.
- Recommendation to the Court. Upon receipt
by the Committee of an affidavit from an attorney who
intends to resign pursuant to the rules of the Court,
the chief counsel shall review the affidavit and such
other matters as the chief counsel deems appropriate
and determine either (i) to recommend to the Court that
the resignation be accepted and to recommend any terms
and conditions of acceptance the chief counsel deems
appropriate, or (ii) to recommend to the Court that the
resignation not be accepted with the reasons therefor.
The chief counsel shall submit the affidavit and the
recommendation to the Court, and the proceedings, if
any, before the Court shall be conducted by staff counsel.
- Notification of Complainant. In the event
the Court accepts the resignation of a Respondent and
removes the Respondent on consent, the Office of Chief
Counsel by means of written notice shall notify the Complainant
of such action.
- Applications for Reinstatement. Upon receipt
by the Committee of an application of an attorney who has
been disbarred or who has been suspended for more than six
months, or whose name has been stricken from the roll of
attorneys on consent by order of the Court, applying for
reinstatement pursuant to the rules of the Court, the chief
counsel shall serve a copy of the petition upon each complainant
in the disciplinary proceeding that led to the suspension
or disbarment, and shall notify the complainant(s) that they
have sixty days to raise objections to or to support the
lawyer's petition. Upon the expiration of the sixty-day period,
the chief counsel shall either (1) advise the lawyer and
the Court that the chief counsel will stipulate to the reinstatement
or (2) advise the lawyer and the Court that the chief counsel
opposes the reinstatement. If the chief counsel opposes the
reinstatement, he shall present the reasons for the opposition
and shall request that the Court deny the application or
appoint a Referee and refer the matter to the Committee.
- Determination of Serious Crimes. Upon receipt
by the Committee of a certificate demonstrating that an attorney
has been convicted of a crime in the state of New York or
in any other state, territory or district, the chief counsel
shall determine whether the crime is a "serious crime"
as defined in the rules of the court governing the conduct
of attorneys. Upon a determination by the chief counsel that
the crime is a serious crime, the office of the chief counsel
shall file the certificate of conviction with the Court.
§ 605.11 Formal
Proceedings; Preliminary Provisions
- Representation of Respondent
- Appearance Pro Se. When a Respondent
appears pro se in a Formal Proceeding, the Respondent
shall file with the Office of Chief Counsel an address
to which any notice or other written communication required
to be served upon the Respondent may be sent.
- Representation of Respondent by Counsel.
When a Respondent is represented by counsel in a Formal
Proceeding, counsel shall file with the Office of Chief
Counsel, a written notice of such appearance, which shall
state such counsel's name, address and telephone number,
the name and address of the Respondent on whose behalf
counsel appears, and the caption of the subject proceeding.
Any additional notice or other written communication
required to be served on or furnished to a Respondent
may be sent to the counsel of record for such Respondent
at the stated address of the counsel in lieu of transmission
to the Respondent. In any proceeding where counsel has
filed a notice of appearance pursuant to this subsection,
any notice or other written communication required to
be served on or furnished to the Respondent shall also
be served upon or furnished to the Respondent's counsel
(or one of such counsel if the Respondent is represented
by more than one counsel) in the same manner as prescribed
for the Respondent, notwithstanding the fact that such
communication may be furnished directly to the Respondent.
- Format of Pleadings and Documents. Pleadings
or other documents filed in Formal Proceedings shall comply
with and conform to the rules from time to time in effect
for comparable documents in the Supreme Court in the First
Department.
- Expeditious Proceedings; Extensions. Formal
Proceedings shall be expeditiously conducted. Extension of
the time periods specified in this Part regarding proceedings
before the Referee or Hearing Panel shall be made in writing
to the Court and determined by a Justice of the Court upon
good cause shown.
- Service by the Departmental Disciplinary
Committee.
- Orders, notices and other documents originating
with the Committee, including all forms of Referee, Hearing
Panel or Committee action, petitions and similar process,
and other documents designated by the Committee for this
purpose, shall be served by the Office of Chief Counsel
either personally or by mailing a copy thereof, to the
person to be served, addressed to that person at the
person's last known address. Whenever any document is
to be served by mail upon the Respondent individually,
it shall be by both certified mail, return receipt requested,
and by first class mail. In all other instances, service
by mail shall be by first class mail.
- Service by mail shall be complete upon
mailing. When service is not accomplished by mail, personal
service may be effected by anyone duly authorized by
the Office of Chief Counsel in the manner provided in
the laws of the State of New York relating to service
of process in civil actions.
- Number of Copies. The following number of
copies of documents shall be served by each Party in a proceeding:
- documents being served by the Office
of Chief Counsel: one copy of each document to the Respondent,
and one copy of each document to the Referee and to each
member of the Hearing Panel, as may be appropriate.
- documents being served by the Respondent:
one copy of each document (plus 10 copies of the Answer)
to the Office of Chief Counsel, one copy to the Referee
and to each member of the Hearing Panel, as may be appropriate,
and one copy of each document to each other Respondent,
if any; in each case, to be served personally or by mailing
a copy thereof (by certified mail, return receipt requested)
to the person to be served.
- copies of exhibits to be offered during
the hearing shall be provided as specified in section
605.12(d) of this Part.
- Amendment and Supplementation of Pleadings.
No amendment or supplementation of any Notice of Charges
or of any Answer shall be made unless specified in the Pre-Hearing
Stipulation or otherwise granted by the Referee. Any objection
to a proposed amendment shall be determined by the Referee
upon conditions deemed appropriate.
Whenever, in the course of any hearing under these Rules,
evidence shall be presented upon which another charge or
charges against the Respondent might be made, it shall not
be necessary to prepare or serve an additional Notice of
Charges with respect thereto, but the Referee may, after
reasonable notice to the Respondent and an opportunity to
answer and be heard, proceed to the consideration of such
additional charge or charges as if they had been made and
served at the time of service of the Notice of Charges, and
may render its decision upon all such charges as may be justified
by the evidence in the case.
§ 605.12 Formal
Proceedings.
- Commencement of Formal Proceedings. The Office
of Chief Counsel shall institute formal disciplinary proceedings
by serving on the Respondent a Notice of Charges under subdivision
(b) of this section in either of the following cases:
- pursuant to a determination to institute
formal
proceedings made under section 605.6 or section 605.7
of this
Part; or
- pursuant to a referral under the rules
of the Court.
- Notice of Charges.
- Caption. A Notice of Charges will be
captioned as follows:
Before the Departmental Disciplinary
Committee of the Appellate Division
Of the Supreme Court of the State of New York,
First Judicial Department
Notice of Charges Docket No. Before Referee
__________________
In the Matter of
__________________,
Respondent.
- Contents. The notice of charges shall
set forth the charges of misconduct against the respondent,
the disciplinary rules alleged to have been violated,
and, in appropriate cases, the fact that the Committee
will seek restitution or reimbursement pursuant to section
90 6-a(a) of the Judiciary Law, and costs pursuant to
section 605.13(p)(4)(v) of this Part. The notice of charges
shall also indicate the Referee appointed to hear the
matter, the date, time and place of the hearing, which
shall be determined by the Referee and shall advise the
respondent that the respondent is entitled to be represented
by counsel, to cross-examine witnesses, and to present
evidence.
- Answer.
- General Rule. The Respondent shall answer
the Notice of Charges by serving and filing an Answer
(and 10 copies thereof) in the Office of Chief Counsel
within 20 days after service of the Notice of Charges,
unless a shorter time is fixed by the Committee Chairperson
and specified in the Notice of Charges.
- Contents of Answer. The Answer shall
be in writing and shall respond specifically (by admissions,
denials or otherwise) to each allegation of the Notice
of Charges and shall assert all affirmative defenses.
- Request to Be Heard in Mitigation. The
Respondent may include in the Answer matters in mitigation.
- Effect of Failure to Answer. In the event
the Respondent fails either to serve and file an Answer
or respond specifically to any allegation or charge,
such allegation or charge shall be deemed admitted.
- Pre-hearing Stipulation. A form of a Pre-Hearing
Stipulation specifying the following shall be served on the
Respondent together with the Notice of Charges:
- amendments;
- claims or defenses abandoned; or
- undisputed facts:
- facts not in dispute as to Staff's
Counsel's case;
- facts not in dispute as to the Respondent's
case;
- facts in dispute:
- the Staff Counsel's contentions;
- the Respondent's contentions;
- documents to be offered in evidence during
the hearing.1
- the staff will offer the following
numbered exhibits;
- the Respondent will offer the following
lettered exhibits;
- witnesses to be called:2
- by Staff Counsel;
- by the Respondent;
- statement of legal contentions and authorities;3
- length of trial.
- No Other Pleadings. Pleadings shall be limited
to a Notice of Charges and any Answer thereto, as amended
or supplemented in accordance with section 605.11 of this
Part.
- Assignment for Hearing.
- Appointment of Referee. Prior to service
of the notice of charges, the Chief Counsel shall request
that the Court appoint a Referee to conduct a hearing
pursuant to the Rules of this Part.
- Objection to Referee. Within 7 days of
the service of charges the Office of the Chief Counsel
or the Respondent may object to the Referee appointed.
The objection shall be made to the Court in writing on
notice to the Referee and the adversary.
- All documents (including schedules,
summaries, charts and diagrams) to be offered (other
than those to be used for impeachment or rebuttal)
are to be listed in the stipulation with a description
of each sufficient for identification. The documents
are to be premarked by counsel, and, to the extent
practicable, such markings are to be in the sequence
of which the documents will be offered. If illegible
or handwritten documents are to be offered, counsel
shall include a typed version of the document.
Objections as to authenticity must be made in this
stipulation or else they shall be deemed waived.
Counsel are directed to exchange copies of their
exhibits within two business days prior to the scheduled
hearing.
Counsel offering an exhibit shall provide a copy
for the Referee at that time. Witnesses to be called
in rebuttal or for impeachment purposes need not
be identified in this stipulation.
- Witness identification should include
the witness' name (and address) and a brief statement
of the overall scope of the witness' testimony. For
example, if specific witnesses are to be called to
substantiate particular claims or defenses on portions
thereof, that should be noted. In addition, any witness
being called as a character witness should be so
designated.
- Only a brief statement of each contention
is required, together with the principal authority
relied upon; string cites are not necessary.
§ 605.13 Conduct
of Referee Proceedings
- Expediting Proceedings.
- Conferences. In order to provide opportunity
for the submission and consideration of facts or arguments,
or consideration of means by which the conduct of the
hearing may be facilitated and the disposition of the
proceeding expedited (including preparation of agreed
stipulations of fact) Staff Counsel and Respondent or
his attorneys shall meet five (5) days after the Answer
is served to complete and sign a Pre-Hearing Stipulation
in conformance with the form set forth in section 605.12(d)
of this Part. Staff Counsel shall forward the signed
stipulation immediately to the Referee.
- Commencement of Hearing. The hearing
before the Referee shall commence within 60 days after
service of the Notice of Charges and shall be conducted
on consecutive days.
- Appearances. The Referee shall cause to be
entered upon the record all appearances, with a notation
in whose behalf each appearance is made.
- Order of Procedure. In proceedings upon a
Notice of Charges, the Office of Chief Counsel shall have
the burden of proof, shall initiate the presentation of evidence,
and may present rebuttal evidence. Opening statements, when
permitted in the discretion of the Referee, shall be made
first by Staff Counsel. Closing statements shall be made
first by the Respondent.
- Presentation by the Parties. Respondent and
Staff Counsel shall have the right of presentation of evidence,
cross-examination, objection, motion and argument. The Referee
may examine all witnesses.
- Limiting Number of Witnesses. The Referee
may limit the number of witnesses who may be heard upon any
issue before it to eliminate unduly repetitious or cumulative
evidence.
- Additional Evidence. At the hearing the Referee
may authorize any Party to file specific documentary evidence
as a part of the record.
- Oral Examination. Witnesses shall be examined
orally unless the testimony is taken by deposition as provided
in Section 605.17(b) of this Part, or the facts are stipulated
in the manner provided in section 605.12(d) or 605.13(i)
of this Part. Witnesses whose testimony is to be taken shall
be sworn, or shall affirm, before their testimony shall be
deemed evidence in the proceeding or any questions are put
to them.
- Fees of Witnesses. Witnesses subpoenaed by
the Office of the Chief Counsel or the Respondent shall be
paid, by the subpoenaing party, the same fees and mileage
as are paid for like service in the Supreme Court in the
First Department.
- Presentation and Effect of Stipulation. The
Parties may stipulate as to any relevant matters of fact
or the authenticity of any relevant documents. Such stipulations
may be received in evidence at a hearing, and when so received
shall be binding on such Parties with respect to the matters
therein stipulated.
- Admissibility of Evidence.
- General Rule. All evidence which the
Referee deems relevant, competent and not privileged
shall be admissible in accordance with the principles
set out in section 605.1 of this Part.
- Pleadings. The Notice of Charges and
Answer thereto shall, without further action, be considered
as parts of the record.
- Convictions. A certificate of the conviction
of a Respondent for any crime shall be conclusive evidence
of the Respondent's guilt of that crime in any disciplinary
proceeding instituted against the Respondent and based
on the conviction, and the Respondent may not offer evidence
inconsistent with the essential elements of the crime
for which the Respondent was convicted as determined
by the statute defining the crime except such evidence
as was not available either at the time of the conviction
or in any proceeding challenging the conviction.
- Reception and Ruling on Evidence. When objections
to the admission or exclusion of evidence are made, the grounds
relied upon shall be stated. Formal exceptions are unnecessary.
The Referee shall rule on the admissibility of all evidence
- Copies of Exhibits. When exhibits of a documentary
character are received in evidence, copies shall, unless
impracticable, be furnished to the Parties and to the Referee.
- Recording of Proceeding. Hearings shall be
recorded by reporters authorized to take oaths, or by mechanical
recording devices and a transcript of the hearing so recorded,
if such transcription is made, shall be a part of the record
and sole official transcript of the proceeding. Such transcript
shall consist of a verbatim report of the hearing, an exhibit
list and the reporter's certificate, and nothing shall be
omitted from the record except as the Referee may direct.
After the closing of the record, there shall not be received
in evidence or considered as part of the record any document
submitted after the close of testimony, except as provided
in subdivision (f) of this section or changes in the transcript,
except as provided in subdivision (n) of this section.
- Transcript Corrections. Corrections in the
official transcript may be made only to make it conform to
what actually transpired at the hearing. No corrections or
physical changes shall be made in or upon the official transcript
of the hearing except as provided in this section. Transcript
corrections agreed to by all Parties may be incorporated
into the record, if the Referee approves, at any time during
the hearing or after the close of the hearing, but in no
event more than 10 days after the receipt of the transcript.
Any dispute among the Parties as to correction of the official
transcript shall be resolved by the Referee, whose decision
shall be final.
- Copies of Transcripts. A Respondent desiring
copies of an official transcript may obtain such copies at
the Respondent's own expense from the official reporter.
Any witness may obtain from the official reporter at the
witness' own expense a copy of that portion of the transcript
relating to the witness' own testimony, or any part thereof.
The Office of Chief Counsel shall in either case, bear the
expense of one such copy if the Referee so directs upon good
cause shown.
- Determinations.
- Post-Testimony Procedure. At the conclusion
of the testimony and following the presentation of oral
arguments, the Referee shall determine whether an inquiry
as to sanction is required and shall, before the commencement
of the inquiry, set forth on the record or in writing,
the charges that are to be sustained. The inquiry may
commence immediately upon the conclusion of the oral
arguments, but in no event later than 7 days from the
conclusion of the oral arguments whether any charges
against the Respondent are to be sustained.
- No Charge Sustained. If none of the charges
against the respondent are sustained, the Referee shall
so advise the parties in writing or on the record.
- Any Charge Sustained. If any charge against
the Respondent is sustained, the Referee shall so advise
the parties in writing or on the record, and shall thereupon
ascertain from Staff Counsel, whether the Respondent
has previously been subject to disciplinary action by
the Court, the Departmental Disciplinary Committee, any
grievance committee established or authorized by any
other Appellate Division of the Supreme Court of the
State of New York, or by any other court.
- Sanctions. Following the Referee's determination
to sustain one or more charges against the Respondent
the Referee shall recommend which of the following disciplinary
sanctions should be imposed:
- reprimand;
- referral to the Court, with a recommendation
as to censure, suspension or disbarment;
- reprimand, with referral to the Court,
with a recommendation as to censure, suspension or
disbarment;
- referral to the Court under (ii)
or (iii) above, with a recommendation as to restitution
or reimbursement, pursuant to section 90 6-a of the
Judiciary Law; and
- referral to the Court under (ii)
or (iii) above, authorizing a request to the Court
that costs be imposed on the respondent.
Upon such recommendation having been made, the Referee
shall so advise the parties on the record or reserve
decision until the issuance of the Report and Recommendation.
- Referee's Report and Recommendation.
- Report and Recommendation. In all cases
the Referee shall prepare a written report and recommendation
as to sanction which shall state the Referee's findings
of fact and conclusions of law.
- Submissions of the Parties. In the Referee's
discretion staff counsel or respondent may request, or
the Referee may require, the submission of briefs or
proposed findings of fact and conclusions of law in accordance
with such schedule as the Referee may set at the conclusion
of the hearing. Any submission by one party shall be
served upon the other.
- Service of Report. The Referee shall
file a Report and Recommendation within 60 days of the
conclusion of the hearing at the Office of Chief Counsel,
which shall serve copies thereof upon the respondent.
§ 605.13-a
Conduct of Hearing Panel Proceedings Directed by the Court
- Designation of Hearing Panel. Within 10 days
of the date of an order of the court directing the Committee
Chairperson to designate a Hearing Panel to conduct disciplinary
proceedings pursuant to section 603.12 or 603.14 of this
Title, the Chairperson shall assign such Hearing Panel. The
Hearing Panel shall not include any Reviewing Member designated
pursuant to section 605.6(f)(2) of this Part to review the
complaint underlying the Petition, any member of the Committee
designated pursuant to section 605.8(c)(3) of this Part to
review such matter, or the complainant if a member of the
Committee.
- Objection to Hearing Panel Member. Within
7 days of the assignment of a Hearing Panel, the Office of
the Chief Counsel or Respondent may object to participation
of any member of the Hearing Panel. The objection shall be
made in writing to the Hearing Panel Chairperson. The Hearing
Panel shall consider the objection and determine whether
to sustain or deny the objection. The Hearing Panel member
who is the subject of an objection shall not participate
in the determination of the objection. In his or her discretion,
the Committee Chairperson may substitute another member of
the Committee for a panel member who is subject of an objection
that has been sustained. The Committee Chairperson shall
substitute to the extent possible an attorney for an attorney
and a non-attorney for a non-attorney.
- Conduct of the Proceedings. Proceedings before
a Hearing Panel held pursuant to this section shall be conducted
in accordance with section 605.13 of this Part.
- Procedure Following the Filing of the Hearing
Panel Report and Recommendation. Upon the filing of the Hearing
Panel Report and Recommendation, the Departmental Disciplinary
Committee shall take action in accordance with section 605.15
of this Part.
§ 605.14 Conduct
of Hearing Panel Proceedings Following the
Filing of the Referee's Report and Recommendation
- Designation of Hearing Panel. Within 10 days
of the filing of the Referee's Report and Recommendation,
the Committee Chairperson shall assign a Hearing Panel to
review the Report and Recommendation. The Hearing Panel shall
not include any Reviewing Member designated pursuant to section
605.6(f)(2) of this Part to review the complaint underlying
in the Report and Recommendation, any member of the Committee
designated pursuant to section 605.8(c)(3) of this Part to
review such matter, or the complainant if a member of the
Committee.
- Objection to Hearing Panel Member. Within
7 days of the assignment of a Hearing Panel, the Office of
the Chief Counsel or Respondent may object to participation
of any member of the Hearing Panel. The objection shall be
made in writing to the Hearing Panel Chairperson. The Hearing
Panel shall consider the objection and determine whether
to sustain or deny the objection. The Hearing Panel member
who is the subject of an objection shall not participate
in the determination of the objection. In his or her discretion,
the Committee Chairperson may substitute another member of
the Committee for a panel member who is the subject of an
objection that has been sustained. The Committee Chairperson
shall substitute to the extent possible an attorney for an
attorney and a non-attorney for a non-attorney.
- Transmittal of Transcript and Memoranda.
Within 10 days of the assignment of a Hearing Panel, the
Office of the Chief Counsel shall transmit to the Hearing
Panel, one copy of the transcript; and to each Panel Member
a copy of the Referee's Report and Recommendation and any
other memoranda or briefs submitted to the Referee.
- Schedule for Proceedings. Within 30 days
of the Hearing Panel's assignment the parties shall present
oral argument and submit briefs on the Referee's Report and
Recommendation pursuant to a schedule set by the Hearing
Panel Chairperson.
- Order of Procedure. Oral argument shall be
made first by Staff Counsel. The time limits for oral argument
shall be set by the Hearing Panel Chairperson.
- Transcript. No transcript shall be made of
the oral argument.
- Determination.
- At the conclusion of the oral argument,
the Hearing Panel, in executive session, shall determine
whether to confirm, disaffirm or modify the findings
of fact and conclusions of law set forth in the Referee's
Report and Recommendation. Upon making that determination,
the Hearing Panel Chairperson shall advise the parties
and if the Referee recommends and the Hearing Panel confirms
that a reprimand is to be delivered the Hearing Panel
chairperson shall thereupon deliver the reprimand and
advise the Respondent of his or her rights under section
605.15(e).
- Within forty days of the presentation of
the oral argument or ten days of the submission of briefs, whichever
period is shorter, the Hearing Panel shall file at the Office
of the Chief Counsel a written Determination confirming,
disaffirming or modifying the Referee's Report and Recommendation.
The Hearing Panel Chairperson shall assign a Panel Member
to prepare the Determination. Separate dissents or concurrences
may be filed.
§ 605.15 Action
by the Departmental Disciplinary Committee
- Dismissal of All Charges. In the event that
the Referee and the Hearing Panel determine that all charges
considered at both proceedings should be dismissed, the Office
of Chief Counsel shall give written notice of such determination
to the respondent and the complainant. This decision shall
be final and the matter closed, unless within sixty days
of the date on which the Hearing Panel files its determination
the Chief Counsel files a motion to disaffirm under § 605.15(e)(2)
of this Part.
- Reprimand.
- Notice. In the event that the Referee
and Hearing Panel determine that the proceeding should
be concluded by Reprimand (with or without referral of
the matter to the Court), the Committee Chairperson shall
give written confirmation thereof (which shall bear the
designation "REPRIMAND") to the Respondent
and Staff Counsel, which notice shall also advise the
Respondent of:
- the charges which were sustained;
- any charges which were dismissed;
- the respondent's right under subdivision
(c)
of this section to petition the Court; and
- the determination, if made, to refer
the matter
to the Court.
- Record. The confirmation shall constitute
a written record of the Reprimand, and shall be permanently
retained.
- Petition by Respondent to Vacate Reprimand.
A Respondent shall not be entitled to appeal a Reprimand
recommended by a Referee and confirmed by a Hearing Panel. Within 30 days of a Reprimand without referral of the matter
to the Court, a Respondent may petition the Court to vacate
the Reprimand pursuant to the Rules of the Court. In the
event of such petition, if so determined by the Hearing Panel
Chairperson, the disciplinary sanction shall become a Reprimand
with referral to the Court under section 605.13(p)(4)(iii)
of this Part, and shall be treated as such under section
605.13(q) of this Part.
- Notification of Complainant. The Office of
Chief Counsel by means of written notice shall notify the
Complainant of any Reprimand which has become final and is
not subject to further review, and the notice shall inform
the Complainant of the requirement of confidentiality.
- Referral to the Court.
- General Rule. In the event the Referee
and Hearing Panel shall determine that the matter should
be concluded by referral to the Court (with or without
Reprimand), by Reprimand without referral to the Court
in cases where the Respondent is unwilling to have the
matter concluded by such Reprimand, or in the event that
the Hearing Panel modifies or disaffirms the Referee's
Report and Recommendation the Committee shall submit
the Referee's Report and Recommendation and the Hearing
Panel's Determination together with the entire record
as reflected in the docket maintained by the Office of
Chief Counsel, to the Court, and the proceedings, if
any, before the Court shall be conducted by Staff Counsel.
- Procedure. The Committee (or, upon the
general or limited written direction of the Committee
chairperson, the chief counsel) shall transmit the report
and the record to the Court with an appropriate petition
or motion to disaffirm. If the chief counsel's office
accepts the Hearing Panel's report, it shall file a petition.
If the chief counsel's office objects to any finding
or conclusion contained in the Hearing Panel Determination
it may file a motion to disaffirm the Determination in
whole or in part, and ask the Court to enter such other
and further relief as may be appropriate under the circumstances
including, but not limited to, reversal or modification
of any finding in the Determination and change in sanction.
Copies of such petition or motion to disaffirm shall
be served by the office of chief counsel upon the respondent.
- Notification of Complainant. The Office
of Chief Counsel by means of written notice shall notify
the Complainant of any referral to the Court (which notice
shall inform the Complainant of the requirement of confidentiality),
and of any final action by the Court.
§ 605.16 Reopening
of Record
- Reopening on Application of Respondent.
- Application to Reopen. No application
to reopen a proceeding shall be granted except upon the
application of Staff Counsel or the Respondent made prior to the filing by
the Referee of the Report and Recommendation or a Hearing
Panel acting as the trier of fact in the first instance of its Determination and only upon good cause shown.
Such application shall set forth clearly the facts claimed
to constitute grounds requiring reopening of the proceedings,
and shall be filed with the Office of Chief Counsel.
A copy of such application shall be served by the movant
upon all other parties.
- Responses. Within five days following
the receipt of such application, any other Party may
file with the Office of Chief Counsel an answer thereto,
and in default thereof shall be deemed to have waived
any objection to the granting of such application.
- Action on Application. As soon as practicable
after the filing of an answer to such application or
default thereof, as the case may be, the Office of Chief
Counsel shall transmit such documents to the Referee
or to the Hearing Panel Chairperson, as may be appropriate,
who shall grant or deny such petition.
§ 605.17 Subpoenas,
Depositions and Motions
- Subpoenas. Both Staff Counsel and the Respondent
shall have the right to summon witnesses and require production
of books and papers by issuance of subpoenas in accordance
with the rules of the Court.
- Depositions. When there is good cause to
believe that the testimony of a potential witness will be
unavailable at the time of hearing, testimony may be taken
by deposition. Such deposition shall be initiated and conducted
in the manner provided for the taking of depositions in the
New York Civil Practice Law and Rules, and the use of such
depositions at hearings shall be in accordance with the use
of depositions at trials under the Civil Practice Law and
Rules.
- Motions. The Referee or the Hearing Panel
to which a matter has been assigned, as may be appropriate,
will entertain, from time to time, such motions as justice
may require, in accordance with the principles set out in
section 605.1(b) of this Part.
§ 605.18 Membership,
Committees, Officers and Office of Chief Counsel
- Membership.
- General. The Committee consists of volunteers
appointed by the Court.
- Disqualification. No person shall, while
serving on the Committee, appear before the Committee
or any Hearing Panel on behalf of any other person.
- Policy Committee and Hearing Panels; Sub-committees.
The Committee chairperson shall from time to time appoint,
subject to the approval of a majority of the total membership
of the Departmental Disciplinary Committee, from among the
members of the Committee (1) a policy committee consisting
of the Committee chairperson and six or more other members,
and (2) no fewer than nine hearing panels each consisting of no fewer than four members, at least
three of whom shall be assigned to a matter. The Committee
chairperson shall assign at least two attorneys to each matter.
No person shall serve concurrently either on the policy committee
and hearing panel, or on more than one hearing panel (except
by virtue of substitution in accordance with section 605.14(b)
of this part, or when requested by a hearing panel in order
to assure the presence of a quorum, and in any such event
such person shall also be deemed a member of such other hearing
panel with respect to and for the remainder of the proceeding).
The Committee Chairperson may from time to time establish
one or more subcommittees of the Committee, consisting of
one or more members of the Committee for such purposes as
the Committee Chairperson shall direct.
- Officers. The Committee Chairperson shall
serve as the chairperson of the Policy Committee. The Committee
Chairperson shall appoint a Hearing Panel Chairperson for
each of the Hearing Panels from among the members thereof
who are attorneys. The Committee Chairperson shall also appoint
a Secretary of the Committee. Each Hearing Panel Chairperson
and the Secretary shall be appointed for a one year term
and may be appointed for additional terms while serving on
the Committee. The Committee Chairperson may from time to
time appoint, from among the members of the Policy Committee,
an Acting Committee Chairperson who shall, in the absence
of the Committee Chairperson, have all the powers of the
Committee Chairperson.
- Duties of Officers. The Committee Chairperson,
each Hearing Panel Chairperson and the Secretary shall have
such duties as are provided in this Part.
§ 605.19 Meetings
of the Departmental Disciplinary Committee
- Meetings, Notice of Time and Place. The Committee
shall meet not less frequently than every other month, and
such meetings shall be held upon notice from the Secretary
given at the direction of the Committee Chairperson or five
members of the Committee. The notice shall be in writing
and shall set forth the date and time of the meeting, which
shall take place at such place as may be designated by resolution
of the Departmental Disciplinary Committee or, in the absence
of such resolution by the Committee Chairperson. In lieu
of such written notice, meetings may be called on notice
given to each member of the Committee not less than 24 hours
prior to the time fixed for the meeting, in person or by
telephone or telegraph. All notices shall be given to members
of the Committee at the addresses furnished for such purposes
by the members to the Secretary.
- Organization. The Committee Chairperson shall
preside at all meetings of the Committee. In the absence
of the Committee Chairperson and the Acting Committee Chairperson,
any member of the Committee selected for the purpose by the
members present at the meeting may preside at the meeting.
The Secretary shall keep the minutes of all meetings of the
Committee, and in the absence of the Secretary the person
presiding at the meeting shall appoint a member present to
keep the minutes.
- Agenda. To the extent possible, an agenda
for each meeting of the Committee shall be prepared by or
with the approval of the Committee Chairperson, or the members
calling the meeting, and distributed by the Secretary to
all members of the Committee together with the notice of
meeting or subsequent thereto but prior to the meeting.
- Quorum and Manner of Acting. A majority of
the members of the Committee shall constitute a quorum for
the transaction of business, and all action shall require
an affirmative vote of a majority of the members present
at the meeting.
§ 605.20 Office
of Chief Counsel
- General. There shall be an Office of Chief
Counsel which shall consist of the Chief Counsel, Deputy
Chief Counsel and other Staff Counsel.
- Supervision by Chief Counsel. The Office
of Chief Counsel shall be supervised by the Chief Counsel
who shall, either personally or by other Staff Counsel, exercise
the powers and perform the duties of the Office of Chief
Counsel set forth in these Rules. The Chief Counsel may from
time to time designate the Deputy Chief Counsel or in the
absence of such Deputy Chief Counsel, an Associate Counsel,
to serve as Acting Chief Counsel in the Chief Counsel's absence.
- Powers and Duties of the Office of Chief
Counsel.
The Office of Chief Counsel shall:
- have the powers and duties set forth
in this Part;
- maintain permanent records of all matters
processed by it, including the disposition thereof, and
maintain dockets and assign such docket numbers as may
be appropriate for the clear designation of each matter,
which shall include the calendar year in which the matter
is originally docketed;
- represent the Committee in all proceedings
before the Court;
- supervise and manage the Bar Mediation
Project and Pro Bono Special Counsel Project according
to the provisions of this part and as may be from time
to time modified by the Court, the Committee Chairperson,
the Policy Committee or the entire Disciplinary Committee;
and
- have such other duties as may be assigned
to it from time to time by the Committee Chairperson,
the Policy Committee or the Committee.
- Bar Mediation Project.
- General. Bar Mediators shall consist
of volunteers appointed by the Court for the purposes
described in section 605.22(d)(2) of this part. The Committee
Chair may, with the approval of the Policy Committee,
recommend lawyers to the Court for such appointments.
The Chief Counsel shall forward these recommendations
to the Court together with a proposed order requesting
the appointment of the volunteers as Bar Mediators.
- Referrals. The Chief Counsel's Office
may refer minor complaints involving lawyers with no
significant disciplinary history to Bar Mediators, who
shall attempt to mediate and resolve the matters raised
by the complaint. If the Bar Mediator is unable to resolve
the matter, or if it appears that the matter should be
further considered by the Committee, the Bar Mediator
shall refer the complaint back to the Chief Counsel's
Office for investigation under these rules.
- Pro Bono Special Counsel Program.
- General. Pro Bono Special Counsel shall
be volunteer lawyers appointed by the Court for the purpose
of expediting cases.
- Procedure for Appointment. Upon initial
determination by the Chief Counsel that a potential volunteer
is qualified, the Chief Counsel shall submit the volunteer's
resume to the Policy Committee. Upon approval by the
Policy Committee, the Chief Counsel shall forward the
volunteer's name and descriptive information to the Court,
together with a proposed order, requesting the appointment
of the volunteer attorney as special counsel.
- Other Provisions Governing the Bar Mediation
Project and
the Pro Bono Special Counsel Program.
- Recruitment. From time to time, the Chief
Counsel's Office shall send notices to the principal
bar associations and bar committees on professional discipline
or ethics in the First Department, describing the Bar
Mediation Project and the Pro Bono Special Counsel Program
and soliciting the resumes of interested volunteers.
Potential volunteers may also be recruited informally
by members of the Court or by members of the Committee.
Recommendations for appointment shall be on a non-discriminatory
basis.
- Conflicts. Before accepting the assignment
of a case, Pro Bono Special Counsel shall determine whether
accepting the assignment would create a conflict under
the Lawyer's Code of Professional Responsibility, and
shall agree to inform the Chief Counsel's Office of any
conflict or potential conflict which arises in the course
of handling the case.
- Confidentiality. Bar Mediators and Pro
Bono Special Counsel shall be bound by the confidentiality
rules contained in Judiciary Law §90(10) and all
other applicable confidentiality provisions.
- Supervision and Reporting. The Chief
Counsel (or other staff counsel designated by the Chief
Counsel) shall assume direct responsibility for supervising
a case assigned to Pro Bono Special Counsel. The Chief
Counsel shall report to the Policy Committee on an ongoing
basis as to the progress of cases assigned to Special
Counsel.
- Bar Mediators and Pro Bono Special Counsel
as Volunteers. The members of the Departmental Advisory
Committee, as volunteers, are expressly authorized to
participate in a State-sponsored volunteer program within
the meaning of subdivision 1 of section l7 of the Public
Officers Law.
§ 605.21 Policy
Committee
- General. The Policy Committee shall:
- have the powers and duties set forth
in this Part;
- consult with and report regularly to
the full Committee;
- consider and recommend to the Committee
the establishment of policy for the Committee including
without limitation, the establishment of priorities for
type of misconduct to be investigated and prosecuted,
standards to insure uniform treatment of cases and, subject
to these Rules, the establishment of procedures for the
conduct of investigations by the Office of Chief Counsel
and hearings by the Hearing Panel;
- oversee and evaluate on a continuing
basis the effectiveness of the operation of the Committee
to assure the integrity of the attorney disciplinary
system;
- develop and implement a program to make
the public aware of the importance and effectiveness
of the disciplinary procedures and activities of the
Committee; and
- engage in such activities as may be assigned
to it by the Committee or the Committee Chairperson.
- Meetings, Notice of Time and Place, Agenda.
The Policy Committee shall meet not less frequently than
monthly, and such meetings shall be held upon notice from
the Committee Chairperson or three members of the Policy
Committee. The notice shall be in writing and shall set forth
the date and time of the meeting, which shall take place
at such place as may be designated by resolution of the Policy
Committee or, in the absence or such resolution, by the Committee
Chairperson. In lieu of such written notice, meetings may
be called on notice given to each member of the Policy Committee
not less than 24 hours prior to the time fixed for the meeting,
in person or by telephone or telegraph. All notices shall
be given to members of the Policy Committee at the addresses
furnished for such purpose by the members to the Secretary.
To the extent possible, an agenda for each meeting of the
Policy Committee shall be prepared with the approval of the
Committee Chairperson, or the members calling the meeting,
and distributed by the Secretary to all members of the Policy
Committee together with the notice of meeting or subsequent
thereto but prior to the meeting.
- Organization. The Committee Chairperson shall
preside at all meetings of the Policy Committee and shall
appoint a secretary who shall keep the minutes of the meetings.
In the absence of the Committee Chairperson and the Acting
Committee Chairperson, any member of the Policy Committee
selected for the purpose by the members of the Policy Committee
present at the meeting may preside at the meeting. The Committee
Chairperson may from time to time establish subcommittees
of the Policy Committee, consisting of one or more members
of the Policy Committee, for such purposes as the Committee
Chairperson shall direct.
- Quorum and Manner of Acting. A majority of
the members of the Policy Committee shall constitute a quorum
for the transaction of business, and all action shall require
an affirmative vote of a majority of the total membership
of the Policy Committee.
§ 605.22 Referees;
Hearing Panels
- A Referee shall:
- have the powers and duties set forth
in these Rules, including, without limitation, the power
and duty to conduct hearings into formal charges of misconduct,
and to make such findings of fact and conclusions of
law and to recommend such disciplinary sanctions as the
Referee may deem appropriate, in accordance with this
Part and Part 603 of the Rules of the Court; and
- perform such other duties as may be imposed
by or pursuant to this Part and Part 603 of the Rules
of the Court.
- Hearing Panels.
- General. Each Hearing Panel shall:
- have the powers and duties set forth
in these Rules, including without limitation, the
power and duty to review the Referee's Report and
Recommendation and to make such Determination as
it may deem appropriate in accordance with this Part;
and Part 603 of the Rules of the Court and
- perform such other duties as may
be imposed pursuant to this Part and Part 603 of
the Rules of the Court.
- Officers. Each Hearing Panel shall be presided
over by a Hearing Panel Chairperson designated under section
605.18(1) of this Part or by an Acting Hearing Panel Chairperson,
who shall be appointed by the Committee Chairperson from
among the members of the Hearing Panel who are attorneys
to serve in the absence of the Hearing Panel Chairperson
shall such powers and duties as are set forth in this Part.
- Quorum and Manner of Acting. All matters
presented to a Hearing Panel shall be determined by three
members of the Panel. Two Panel members assigned to a matter
shall constitute a quorum for the transaction of business.
All action shall require the concurrence of at least two
members. At least two members of a Hearing Panel assigned
to a matter shall have heard the entire proceeding. The third
assigned member either shall have heard the entire proceeding
before the Hearing Panel or shall have read the transcript
of proceedings before Referee and briefs submitted to the
Referee. In the event that one of the three members assigned
to a matter dies, becomes incapacitated, or is otherwise
unable to determine a matter, the fourth member shall take
his or her place. If the fourth member dies, becomes incapacitated,
or is otherwise unable to serve, the Chairperson may designate
another member of the Committee to serve in his or her place.
§ 605.23 Committee
Chairperson and Secretary
- In addition to such other duties as are set
forth in this Part, the Committee Chairperson shall perform
such duties as may be assigned by the Committee, and the
Secretary shall perform such duties as may be assigned by
the Committee or the Committee Chairperson.
§ 605.24 Confidentiality
- Confidentiality. Disciplinary committee members,
committee lawyers, committee employees, and all other individuals
officially associated or affiliated with the committee, including
pro bono lawyers, bar mediators, law students, stenographers,
operators of recording devices and typists who transcribe
recorded testimony shall keep committee matters confidential
in accordance with applicable law.
- Waiver. Upon the written waiver of confidentiality
by any Respondent, all participants shall thereafter hold
the matter confidential to the extent required by the terms
of the waiver.
|
