Part
603
§ 603.1 Application
- This Part shall apply to all attorneys who
are admitted to practice, reside in, commit acts in or who
have offices in this judicial department, or who are admitted
to practice by a court of another jurisdiction and who practice
within this department as counsel for governmental agencies
or as house counsel to corporations or other entities, or
otherwise, and to all legal consultants licensed to practice
pursuant to the provisions of subdivision 6 of section 53
of the Judiciary Law. In addition, any attorney from another
state, territory, district or foreign country admitted pro
hac vice to participate in the trial or argument of a particular
cause in any court in this judicial department, or who in
any way participates in any action or proceeding in this
judicial department shall be subject to this Part.
- This Part shall apply to any law firm, as
that term is used in the Disciplinary Rules of the Code of
Professional Responsibility, section 1200.1(b) of this Title,
that has as a member, employs, or otherwise retains an attorney
or legal consultant described in subdivision (a) of this
section.
- Neither the conduct of proceedings nor the
imposition of discipline pursuant to this Part shall preclude
the imposition of any further or additional sanctions prescribed
or authorized by law, and nothing herein contained shall
be construed to deny to any other court or agency such powers
as are necessary for that court or agency to maintain control
over proceedings conducted before it, such as the power of
contempt, or to prohibit bar associations from censuring,
suspending or expelling their members from membership in
the association; provided, however, that such action by a
bar association shall be reported to the Departmental Disciplinary
Committee appointed pursuant to section 603.4(a) of this
Part, and provided further that such action by a bar association
shall not be a bar to the taking of other and different disciplinary
action by the court or such Departmental Disciplinary Committee.
 §603.2 Professional
Misconduct Defined
- Any attorney who fails to conduct himself
both professionally and personally, in conformity with the
standards of conduct imposed upon members of the bar as conditions
for the privilege to practice law and any attorney who violates
any provision of the rules of this court governing the conduct
of attorneys, or with respect to conduct on or after January
l, 1970, any disciplinary rules of the Code of Professional
Responsibility, as adopted by the New York State Bar Association,
effective January 1, 1970, as amended, or with respect to
conduct on or before December 31, 1969, any canon of the
Canons of Professional Responsibility, as adopted by such
bar association and effective until December 31, 1969 or
with respect to conduct on or after September l, 1990, any
disciplinary rule of the Code of Professional Responsibility,
as jointly adopted by the Appellate Divisions of the Supreme
Court, effective September l, 1990, or any of the special
rules concerning court decorum, shall be guilty of professional
misconduct within the meaning of subdivision 2 of section
90 of the Judiciary Law.
- Any law firm that fails to conduct itself
in conformity with the provisions of the Disciplinary Rules
of the Code of Professional Responsibility pertaining to
law firms shall be guilty of professional misconduct within
the meaning of subdivision 2 of section 90 of the Judiciary
Law.
§603.3 Discipline
of Attorneys for Professional Misconduct in Foreign Jurisdiction
- Any attorney to whom this Part shall apply,
pursuant to section 603.1 of this Part who has been disciplined
in a foreign jurisdiction, may be disciplined by this court
because of the conduct which gave rise to the discipline
imposed in the foreign jurisdiction. For purposes of this
Part, foreign jurisdiction means another state, territory
or district.
- Upon receipt of a certified or exemplified
copy of the order imposing such discipline in a foreign jurisdiction,
and on the record of the proceeding upon which such order
was based, this court, directly or by the Departmental Disciplinary
Committee, shall give written notice to such attorney pursuant
to subdivision 6 of section 90 of the Judiciary Law, according
him the opportunity, within 20 days of the giving of such
notice, to file a verified statement setting forth evidentiary
facts for any defense to discipline enumerated under subdivision
(c) of this section, and a written demand for a hearing at
which consideration shall be given to any and all such defenses.
Such notice shall further advise the attorney that in default
of such filing such discipline or such disciplinary action
as may be appropriate will be imposed or taken. When a verified
statement setting forth evidentiary facts for any defense
to discipline and a demand for hearing have been duly filed,
no discipline shall be imposed without affording the attorney
an opportunity for hearing. The Court may conduct the hearing
or it may appoint a Referee to conduct the hearing and further
refer the matter to the Departmental Disciplinary Committee.
In the event the committee or the attorney desires further
action by this court, a petition may be filed in this court
together with the record of the proceedings before the committee.
- Only the following defenses may be raised:
- that the procedure in the foreign jurisdiction
was so lacking in notice or opportunity to be heard as
to constitute a deprivation of due process; or
- that there was such an infirmity of proof
establishing the misconduct as to give rise to the clear
conviction that this court could not, consistent with
its duties, accept as final the finding in the foreign
jurisdiction as to the attorney's misconduct; or
- that the misconduct for which the attorney
was disciplined in the foreign jurisdiction does not
constitute misconduct in this jurisdiction.
- Any attorney to whom these rules shall apply
pursuant to section 603.1 of this Part who has been disciplined
in a foreign jurisdiction shall promptly advise this court
of such discipline.
- Whenever the Departmental Disciplinary Committee
learns that an attorney to whom these rules shall apply,
pursuant to section 603.1 of this Part, has been disciplined
in a foreign jurisdiction, it shall ascertain whether a certified
or exemplified copy of the order imposing such discipline
has been filed with this court, and if it has not been filed,
such committee shall cause such order to be filed.
§ 603.4 Appointment
of Disciplinary Agencies; Commencement of Investigation of
Misconduct; Complaints; Procedure in Certain Cases
-
- This court shall appoint a Departmental
Disciplinary Committee for the Judicial Department, which
shall be charged with the duty and empowered to investigate
and prosecute matters involving alleged misconduct by
attorneys who, and law firms that, are subject to this
Part, and to impose discipline to the extent permitted
by section 603.9 of this Part. This court shall, in consultation
with the Departmental Disciplinary Committee, appoint
a chief counsel to such committee and such assistant
counsel, special counsel and supporting staff as it deems
necessary.
- This court shall appoint as members of
the Departmental Disciplinary Committee attorneys in
good standing with the Bar of the State of New York and
persons who are not attorneys but reside or have a principal
place of business in the City of New York. Special counsel
may be appointed as members of the committee. At least
two-thirds of the committee shall be attorneys. Appointment
to the committee shall be for a three- year term. Except
for special counsel, a member who has served for two
consecutive terms is not eligible for reappointment for
at least one year following the expiration of the second
term. (The membership of the Departmental Disciplinary
Committee shall be appointed by this court for a term
of three years, except members who have been appointed
to complete unexpired terms, in which case such members
may be reappointed for three-year or shorter terms. At
least two-thirds of the members of the Departmental Disciplinary
Committee shall be members of the Bar of the State of
New York in good standing, each of whom shall reside
or have an office in the City of New York, and up to
one-third of such members shall be persons who are not
members of the Bar, each of whom shall reside or have
a principal place of business in the City of New York.
The court may appoint special counsel who shall be full
members of the committee. Appointments to the Departmental
Disciplinary Committee may be made from lists of nominees
submitted by the Association of the Bar of the City of
New York, the New York County Lawyers' Association, and
the Bronx County Bar Association, and by such other means
which the court deems in the public interest. With the
exception of Special Counsel appointed by the Court,
a member of the Bar who has served two consecutive terms
shall not be eligible for reappointment until one year
after the expiration of the second term. The appropriate
committees of the Association of the Bar of the City
of New York, the New York County Lawyers' Association,
and the Bronx County Bar Association may be designated
to investigate and prosecute matters involving alleged
misconduct of attorneys. Upon such designation, references
in sections 603.3, 603.4(a)(3), (b),(c) and (d), 603.5,
603.6, 603.9,603.11,603.12(a) and (e), 603.15 and 603.16
of this Part to the Departmental Disciplinary Committee
with respect to the matter or matters to which such designation
applies shall mean the Committee of the Association of
the Bar of the City of New York, the New York County
Lawyers' Association or the Bronx County Bar Association
so designated.)
- The members of the Departmental Disciplinary
Committee for the First Judicial Department, as volunteers,
are expressly authorized to participate in a State-sponsored
volunteer program within the meaning of subdivision 1
of section 17 of the Public Officers Law.
- The rules for the conduct of the proceedings
and business of the Departmental Disciplinary Committee,
set forth in Part 605 of this Title, apply to matters involving
alleged misconduct by attorneys and law firms. The Departmental
Disciplinary Committee may act through its chairperson, acting
chairperson, subcommittees or hearing panels.
- Investigation of professional misconduct
may be commenced upon receipt of a specific complaint by
this court, or by the Departmental Disciplinary Committee
or such investigation may be commenced sua sponte by this
court or by the Departmental Disciplinary Committee. Complaints
must be in writing and subscribed by the complainant but
need not be verified. Whenever the Departmental Disciplinary
Committee concludes that the issue involved upon the complaint
is a fee dispute and, accordingly, dismisses the complaint,
the chief counsel to the committee or his assistant shall
advise the complainant and the respondent that the dispute
might be satisfactorily resolved by referring it for conciliation
to the Joint Committee on Fee Disputes organized and administered
by the Association of the Bar of the City of New York, the
New York County Lawyers' Association and the Bronx County
Bar Association and with permission of both the complainant
and respondent, will forward the file to said committee headquartered
at the New York County Lawyers' Association, 14 Vesey Street,
New York, N.Y.
- When the Departmental Disciplinary Committee,
after investigation, determines that it is appropriate to
file a petition against an attorney in this court, the committee
shall institute disciplinary proceedings in this court and
the court may discipline an attorney on the basis of the
record of hearings before such committee, or may appoint
a referee, justice or judge to hold hearings.
- An attorney who is the subject of an
investigation, or of charges by the Departmental Disciplinary
Committee of professional misconduct, or who is the subject
of a disciplinary proceeding pending in this court against
whom a petition has been filed pursuant to this section,
or upon whom a notice has been served pursuant to section
603.3(b) of this Part, may be suspended from the practice
of law, pending consideration of the charges against
the attorney, upon a finding that the attorney i guilty
of professional misconduct immediately threatening the
public interest. Such a finding shall be based upon:
- the attorney's default in responding
to the petition or notice, or the attorney's failure
to submit a written answer to pending charges of
professional misconduct or to comply with any lawful
demand of this court or the Departmental Disciplinary
Committee made in connection with any investigation,
hearing, or disciplinary proceeding, or
- a substantial admission under oath
that the attorney has committed an act or acts of
professional misconduct, or
- other uncontested evidence of professional
misconduct, or,
- the attorney's willful failure or
refusal to pay money owed to a client, which debt
is demonstrated by an admission, a judgment, or other
clear and convincing evidence.
- The suspension shall be made upon the
application of the Departmental Disciplinary Committee
to this Court, after notice of such application has been
given to the attorney pursuant to subdivision six of
section 90 of the Judiciary Law. The court shall briefly
state its reasons for its order of suspension which shall
be effective immediately and until such time as the disciplinary
matters before the Committee have been concluded, and
until further order of the court. Following a temporary
suspension under this rule, the Departmental Disciplinary
Committee shall schedule a post-suspension hearing within
60 days of the entry of the court's order.
- Disciplinary proceedings shall be granted
a preference by this court.
- An application for suspension pursuant to
section 603.4(e)(1) may state that an attorney who is suspended
and who has not appeared or applied in writing to the Committee
or the Court for a hearing or reinstatement for six months
from the date of an order of suspension may be disbarred.
If an application does state the foregoing, and the respondent
does not appear or apply in writing to the Committee or the
Court for a hearing or reinstatement within six months of
the suspension date, the respondent may be disbarred without
further notice.
§ 603.5 Investigation
of Professional Misconduct on the Part of an Attorney; Subpoenas
and Examination of Witnesses Under Oath
- Upon application by the Departmental Disciplinary
Committee, or upon application by counsel to such committee,
disclosing that such committee is conducting an investigation
of professional misconduct on the part of an attorney, or
has commenced proceedings against an attorney, or upon application
by an attorney under such investigation, or who is a party
to such proceedings, the clerk of this court shall issue
subpoenas in the name of the presiding justice for the attendance
of any person and the production of books and papers before
such committee or such counsel or any subcommittee or hearing
panel thereof designated in such application at a time and
place therein specified.
- The Departmental Disciplinary Committee,
or a subcommittee or hearing panel thereof, or its counsel,
is empowered to take and cause to be transcribed the evidence
of witnesses who may be sworn by any person authorized by
law to administer oaths.
§ 603.6 Investigation
of Persons, Firms or Corporations Unlawfully Practicing or
Assuming to Practice Law
- Upon application by the Departmental Disciplinary
Committee, or of a committee of a recognized bar association
authorized to inquire into possible cases of the unlawful
practice of the law, disclosing that there is reason to believe
that a person, firm or corporation is unlawfully practicing
or assuming to practice law, and that such committee is conducting
an investigation into such matter, or upon application by
any such person, firm or corporation under such investigation,
the clerk of this court shall issue subpoenas in the name
of the presiding justice for the attendance of any person
and production of books and papers before such committee,
or any subcommittee or hearing panel thereof designated in
such application, at the time and place therein specified.
- Each committee referred to in subdivision
(a) of this section or a subcommittee or hearing panel of
any of the foregoing, or its counsel, is empowered to take
and cause to be transcribed the evidence of witness who may
be sworn by any person authorized by law to administer oaths.
§ 603.7 Claims
or Actions for Personal Injuries, Property Damage, Wrongful
Death, Loss of Services Resulting From Personal Injuries and
Claims in Connection With Condemnation or Change of Grade Proceedings
- Statements as to Retainers; Blank Retainers.
- Every attorney who, in connection with
any action or claim for damages for personal injuries
or for property damages or for death or loss of services
resulting from personal injuries, or in connection with
any claim in condemnation or change of grade proceedings,
accepts a retainer or enters into an agreement, express
or implied, for compensation for services rendered or
to be rendered in such action, claim or proceeding, whereby
his compensation is to be dependent or contingent in
whole or in part upon the successful prosecution or settlement
thereof, shall, within 30 days from the date of any such
retainer or agreement of compensation, sign personally
and file with the Office of Court Administration of the
State of New York a written statement of such retainer
or agreement of compensation, containing the information
hereinafter set forth. Such statement may be filed personally
by the attorney or his representative at the main office
of the Office of Court Administration in the City of
New York, and upon such filing he shall receive a date
stamped receipt containing the code number assigned to
the original so filed. Such statement may also be filed
by ordinary mail addressed to:
Office of Court Administration--Statements
Post Office Box No. 2016
New York, New York 10008
Statements filed by mail must be accompanied by a self-addressed
stamped postal card, containing the words "Retainer
Statement", the date of the retainer and the name
of the client. The Office of Court Administration will
date stamp the postal card, make notation thereon of
the code number assigned to the retainer statement and
return such card to the attorney as a receipt for the
filing of such statement. It shall be the duty of the
attorney to make due inquiry if such receipt is not returned
to him within 10 days after his mailing of the retainer
statement to the Office of Court Administration.
- A statement of retainer must be filed
in connection with each action, claim or proceeding for
which the attorney has been retained. Such statement
shall be on one side of paper 8-1/2 inches by 14 inches
and be in the following form and contain the following
information:
Retainer Statement For office use:
TO THE OFFICE OF COURT ADMINISTRATION OF THE STATE OF
NEW YORK
- Date of agreement as to retainer
- Terms of compensation
- Name and home address of client
- If engaged by an attorney, name and
office address of retaining attorney
- If claim for personal injuries, wrongful
death or property damage, date and place of occurrence
- If a condemnation or change of grade
proceeding:
- Title and description
- Date proceeding was commenced
- Number or other designation of
the parcels affected
- Name, address, occupation and relationship
of person referring the client ......................
Dated:....N.Y., ... day of......., 19...
Yours, etc.
.........................
Signature of Attorney
.........................
Attorney
.........................
Office and P.O. Address
....Dist. ...Dept. ...County
NOTE: COURT RULES REQUIRE THAT THE ATTORNEY FOR THE PLAINTIFF
FILE A STIPULATION OR STATEMENT OF DISCONTINUANCE WITH
THE COURT UPON DISCONTINUANCE OF AN ACTION
- An attorney retained by another attorney,
on a contingent fee basis, as trial or appeal counsel
or to assist in the preparation, investigation, adjustment
or settlement of any such action, claim or proceeding
shall, within 15 days from the date of such retainer,
sign personally and file with the Office of Court Administration
a written statement of such retainer in the manner and
form as above set forth, which statement shall also contain
particulars as to the fee arrangement, the type of services
to be rendered in the matter, the code number assigned
to the statement of retainer filed by the retaining attorney
and the date when said statement of retainer was filed.
- No attorney shall accept or act under
any written retainer or agreement of compensation in
which the name of the attorney was left blank at the
time of its execution by the client.
- Closing Statement; Statement Where No Recovery.
- A closing statement shall be filed in
connection with every claim, action or proceeding in
which a retainer statement is required, as follows: every
attorney upon receiving, retaining or sharing any sum
in connection with a claim, action or proceeding subject
to this section shall, within 15 days after such receipt,
retention or sharing, sign personally and file with the
Office of Court Administration and serve upon the client
a closing statement as hereinafter provided. Where there
has been a disposition of any claim, action or proceeding,
or a retainer agreement is terminated, without recovery,
a closing statement showing such fact shall be signed
personally by the attorney and filed with the Office
of Court Administration within 30 days after such disposition
or termination. Such statement may be filed personally
by the attorney or his representative at the main office
of the Office of Court Administration in the City of
New York and upon such filing he shall receive a date
stamped receipt. Such statement may also be filed by
ordinary mail addressed to:
The Office of Court Administration -
Statements
Post Office Box No. 2016
New York, New York 10008
Statements filed by mail must be accompanied by a self-addressed
stamped postal card containing the words "Closing
Statement", the date the matter was completed, and
the name of the client. The Office of Court Administration
will date stamp the postal card, make notation thereon
of the code number assigned to the closing statement
and return such card to the attorney as a receipt for
the filing of such statement. It shall be the duty of
the attorney to make due inquiry if such receipt is not
returned to him within 10 days after his mailing of the
closing statement to the Office of Court Administration.
- Each closing statement shall be on one
side of paper 8-1/2 inches by 14 inches and be in the
following form and contain the following information:
Closing Statement For office use:
TO THE OFFICE OF COURT ADMINISTRATION OF THE STATE OF
NEW YORK
- Code number appearing on Attorney's
receipt for filing of retainer statement. (If statement
filed with Clerk of Appellate Division prior to July
1, 1960, give date of such filing.)
......................................................
Code Number
- Name and present address of client
- Plaintiff(s)
- Defendant(s)
-
- If an action was commenced, state
the date:
.......,19..., ......Court........County.
- Was the action disposed of in
open court?
If not, and a request for judicial intervention
was filed, state the date the stipulation or
statement of discontinuance was filed with the
clerk of the part to which the action was assigned.
If not, and an index number was assigned but
no request for judicial intervention was filed,
state the date the stipulation or statement of
discontinuance was filed with the County Clerk
- Check items applicable: Settled (
); Claim abandoned by client( ); Judgment ( ).
Date of payment by carrier or defendant....day of
.....,19..
Date of payment to client....day of .....19...
- Gross amount of recovery (if judgment
entered, include any interest, costs and disbursements
allowed) $....[of which $..
...was taxable costs and disbursements].
- Name and address of insurance carrier
or person paying judgment or claim and carrier's
file number, if any ....
- Net amounts: to client $......; compensation
to undersigned $....; names and addresses and amounts
paid to attorneys participating in the contingent
compensation.
- Compensation fixed by: retainer agreement
( )under schedule ( ); or by court ( ).
- If compensation fixed by court; Name
of Judge....Court...Index No. ...Date of order ......
- Itemized statement of payments made
for hospital, medical care or treatment, liens, assignments,
claims and expenses on behalf of the client which
have been charged against the client's share of the
recovery, together with the name, address, amount
and reason for each payment.
- Itemized statement of the amounts
of expenses and disbursements paid or agreed to be
paid to others for expert testimony, investigative
or other services properly chargeable to the recovery
of damages together with the name, address and reason
for each payment.
- Date on which a copy of this closing
statement has been forwarded to the client ........,
19..
NOTE: COURT RULES REQUIRE THAT THE ATTORNEY FOR THE
PLAINTIFF FILE A STIPULATION OR STATEMENT OF DISCONTINUANCE
WITH THE COURT UPON DISCONTINUANCE OF AN ACTION
Dated:........,N.Y., .......day of ......19...
Yours, etc.
..............................
Signature of Attorney
..............................
Attorney
..............................
Office and P.O. Address
......Dist. .....Dept. .......
County
(If space provided is insufficient, riders on sheets
8-1/2" by 14" and signed by the attorney
may be attached).
- A joint closing statement may be served
and filed in the event that more than one attorney receives,
retains or shares in the contingent compensation in any
claim, action or proceeding, in which event the statement
shall be signed by each such attorney.
- Confidential Nature of Statements
- All statements of retainer or closing
statements filed shall be deemed to be confidential and
the information therein contained shall not be divulged
or made available for inspection or examination to any
person other than the client of the attorney filing said
statements except upon written order of the presiding
justice of the Appellate Division.
- The Office of Court Administration of
the State of New York shall microphotograph all statements
filed pursuant to this section on film of durable material
by use of a device which shall accurately reproduce on
such film the original statements in all details thereof,
and shall thereafter destroy the originals so reproduced.
Such microphotographs shall be deemed to be an original
record for all purposes, and an enlargement or facsimile
thereof may be introduced in evidence in all courts and
administrative agencies and in any action, hearing or
proceeding in place and stead of the original statement
so reproduced, with the same force and effect as though
the original document were presented.
- Deposit of Collections; Notice.
- Whenever an attorney, who has accepted
a retainer or entered into an agreement as above referred
to, shall collect any sum of money upon any such action,
claim or proceeding, either by way of settlement or after
a trial or hearing, he shall forthwith deposit the same
in a special account in accordance with the provisions
of section 603.15 of this Part. Within 15 days after
the receipt of any such sum he shall cause to be delivered
personally to such client or sent by registered or certified
mail, addressed to such client at the client's last known
address, a copy of the closing statement required by
this section. At the same time the attorney shall pay
or remit to the client the amount shown by such statement
to be due the client, and he may then withdraw for himself
the amount so claimed to be due him for compensation
and disbursements. For the purpose of calculating the
15 day period, the attorney shall be deemed to have collected
or received or been paid a sum of money on the date that
he receives the draft endorsed by the client, or if the
client's endorsement is not required, on the date the
attorney receives the sum. The acceptance by a client
of such amount shall be without prejudice to the latter's
right in an appropriate action or proceeding, to petition
the court to have the question of the attorney's compensation
or reimbursement for expenses investigated and determined
by it.
- Whenever any sum of money is payable
upon any such claim, action or proceeding, either by
way of settlement or after trial or hearing, and the
attorney is unable to locate a client, the attorney shall
apply, pursuant to subdivision f-1 of 1200.46 of the
Disciplinary Rules of the Code of Professional Responsibility,
to the court in which such action or proceeding was pending,
or if no action had been commenced, then to the Supreme
Court in the county in which the attorney maintains an
office, for an order directing payment to be made to
the attorney of the fees and reimbursable disbursements
determined by the court to be due said attorney and to
the Lawyers' Fund for Client Protection of the balance
due to the client, for the account of the client, subject
to the charge of any lien found by the court to be payable
therefrom.
- Contingent Fees in Claims and Actions for
Personal Injury and Wrongful Death.
- In any claim or action for personal injury
or wrongful death, other than one alleging medical, dental
or podiatric malpractice, whether determined by judgment
or settlement, in which the compensation of claimant's
or plaintiff's attorney is contingent, that is, dependent
in whole or in part upon the amount of recovery, the
receipt, retention or sharing by such attorney pursuant
to agreement or otherwise, of compensation which is equal
to or less than that contained in any schedule of fees
adopted by this department is deemed to be fair and reasonable.
The receipt, retention or sharing of compensation which
is in excess of such scheduled fees shall constitute
the exaction of unreasonable and unconscionable compensation
in violation of any provision of the Code of Professional
Responsibility, as adopted by the New York State Bar
Association, effective Jan. 1, 1970, as amended, or of
any canon of the Canons of Ethics, as adopted by such
Bar Association effective until Dec. 31, 1969, unless
authorized by a written order of the court as hereinafter
provided.
- The following is the schedule of reasonable
fees referred to in paragraph (1) of this subdivision:
either,
- Schedule A
- 50 percent on the first $1,000
of the sum recovered,
- 40 percent on the next $2,000
of the sum recovered,
- 35 percent on the next $22,000
of the sum recovered,
- 25 percent on any amount over
$25,000 of thesum recovered; or,
- Schedule B
A percentage not exceeding 33 1/3 percent of the
sum recovered, if the initial contractual arrangement
between the client and the attorney so provides,
in which event the procedure hereinafter provided
for making application for additional compensation
because of extraordinary circumstances shall not
apply.
- Such percentage shall be computed on
the net sum recovered after deducting from the amount
recovered expenses and disbursements for expert testimony
and investigative or other services properly chargeable
to the enforcement of the claim or prosecution of the
action. In computing the fee, the costs as taxed, including
interest upon a judgment, shall be deemed part of the
amount recovered. For the following or similar items
there shall be no deduction in computing such percentages:
liens, assignments or claims in favor of hospitals, for
medical care and treatment by doctors and nurses, or
of self-insurers or insurance carriers.
- In the event that claimant's or plaintiff's
attorney believes in good faith that Schedule A, above,
because of extraordinary circumstances, will not give
him adequate compensation, application for greater compensation
may be made upon affidavit with written notice and an
opportunity to be heard to the client and other persons
holding liens or assignments on the recovery. Such application
shall be made to the justice of the trial part to which
the action had been sent for trial; or, if it had not
been sent to a part for trial, then to the justice presiding
at the trial term calendar part of the court in which
the action had been instituted; or, if no action had
been instituted, then to the justice presiding at the
trial term calendar part of the Supreme Court for the
county in the judicial department in which the attorney
who filed the statement of retainer, pursuant to this
section, has an office. Upon such application, the justice,
in his discretion, if extraordinary circumstances are
found to be present, and without regard to the claimant's
or plaintiff's consent, may fix as reasonable compensation
for legal services rendered an amount greater than that
specified in Schedule A, above, provided, however, that
such greater amount shall not exceed the fee fixed pursuant
to the contractual arrangement, if any, between the client
and the attorney. If the application be granted, the
justice shall make a written order accordingly, briefly
stating the reasons for granting the greater compensation;
and a copy of such order shall be served on all persons
entitled to receive notice of the application.
- The provisions of subdivision (e) of
this section shall not apply to an attorney retained
as counsel in a claim or action for personal injury or
wrongful death by another attorney, if such other attorney
is not subject to the provisions of this section in such
claim or action, but all other subdivisions of this section
shall apply
- Nothing contained in subdivision (e)
of this section shall be deemed applicable to the fixing
of compensation for attorneys representing infants or
other persons, where the statutes or rules provide for
the fixation of such compensation by the court.
- Nothing contained in this subdivision
shall be deemed applicable to the fixing of compensation
for attorneys for services rendered in connection with
the collection of first-party benefits as defined by
Article XVIII of the Insurance Law.
- The provisions of paragraph (2) of this
subdivision shall not apply to claims alleging medical,
dental, or podiatric malpractice. Compensation of claimant's
or plaintiff's attorney for services rendered in claims
or action for personal injury alleging medical, dental,
or podiatric malpractice shall be computed pursuant to
the fee schedule in Judiciary Law, § 474-a.
- Preservation of Records of Claims and Actions.
Attorneys for both plaintiff and defendant in the case of
any such claim or cause of action shall preserve, for a period
of seven years after any settlement or satisfaction of the
claim or cause of action or any judgment thereon or after
the dismissal or discontinuance of any action, the pleadings
and other papers pertaining to such claim or cause of action,
including, but not limited to, letters or other data relating
to the claim of loss of time from employment or loss of income;
medical reports, medical bills, X-ray reports, X-ray bills;
repair bills, estimates of repairs; all correspondence concerning
the claim or cause of action; and memoranda of the disposition
thereof as well as canceled vouchers, receipts and memoranda
evidencing the amounts disbursed by the attorney to the client
and others in connection with the aforesaid claim or cause
of action and such other records as are required to be maintained
under section 603.15 of this Part.
- Omnibus Filings in Property Damage Claims
or Actions. Attorneys prosecuting claims or actions for property
damages are permitted to make semi-annual omnibus filings
of retainer statements and closing statements.
§ 603.8 Compromise
of Claims or Actions Belonging to Infants
- An application for the approval by the court
of a settlement of a claim or cause of action belonging to
an infant must be made as provided in CPLR 1207 and 1208.
- In the case of a claim or demand belonging
to an infant, any sum collected by an attorney shall be deposited
in a special account apart from his personal account, in
accordance with the provisions of section 603.15 of this
Part, and a statement of the amount received shall be delivered
personally to the duly qualified guardian of the infant or
mailed to such guardian by registered or certified mail addressed
to said guardian's last known address. But no payment or
withdrawal shall be made from such deposit in the said account
to the credit of the infant's claim except pursuant to an
order of the court after application as provided in section
474 of the Judiciary Law, upon at least two days' notice
to the guardian.
§ 603.9 Discipline
by Departmental Disciplinary Committee
- 1 The Departmental Disciplinary Committee
may issue an admonition or a reprimand in those cases in
which professional misconduct, not warranting proceedings
before this court, is found. An admonition is discipline
imposed without a hearing. A reprimand is discipline imposed
after a hearing.
1. Par.(b) was repealed eff. May 16, 1994.
§ 603.10
Effect of Restitution on Disciplinary Proceedings.
- Restitution made by an attorney or on his
behalf for funds converted or to reimburse a person for losses
suffered as a result of the attorney's wrongdoing shall not
be a bar to the commencement or continuance of disciplinary
proceedings.
§ 603.11 Resignation
of Attorneys Under Investigation or the Subject of Disciplinary
Proceedings
- An attorney who is the subject of an investigation
into allegations of misconduct or who is the subject of a
disciplinary proceeding pending in the court may submit his
resignation by submitting to the Departmental Disciplinary
Committee an affidavit stating that he intends to resign
and that:
- his resignation is freely and voluntarily
rendered; he is not being subjected to coercion or duress;
and he is fully aware of the implications of submitting
his resignation;
- he is aware that there is pending an
investigation or disciplinary proceeding into allegations
that he has been guilty of misconduct, the nature of
which shall be specifically set forth; and
- he acknowledges that if charges were
predicated upon the misconduct under investigation, he
could not successfully defend himself on the merits against
such charges, or that he cannot successfully defend himself
against the charges in the proceedings pending in the
court.
- On receipt of the required affidavit, such
committee shall file it with this court, together with either
its recommendation that the resignation be accepted and the
terms and conditions, if any, to be imposed upon the acceptance,
or its recommendation that the resignation not be accepted.
- This court, in its discretion, may accept
such resignation, upon such terms and conditions as it deems
appropriate or it may direct that proceedings before the
Departmental Disciplinary Committee or before this court
go forward.
- This court, if it accepts such resignation,
shall enter an order removing the attorney on consent and
may order that the affidavit referred to in subdivision (a)
of this section be deemed private and confidential under
subdivision 10 of section 90 of the Judiciary Law.
§ 603.12 Attorneys
Convicted of Crimes; Record of Conviction Conclusive Evidence
- Upon receipt by the Departmental Disciplinary
Committee of a certificate demonstrating that an attorney
has been convicted of a crime in this State, or in any foreign
jurisdiction, whether the conviction resulted from a plea
of guilty or nolo contendere or from a verdict after trial
or otherwise, the committee shall determine whether the crime
is a serious crime as defined in subdivision (b) of this
section. Upon a determination that a crime is a serious crime,
the committee shall forthwith file the certificate of conviction
with the court. This court shall thereupon enter an order
directing the Chairperson of the Departmental Disciplinary
Committee to designate a Hearing Panel or appointing a referee,
justice or judge, to conduct forthwith disciplinary proceedings.
If the committee determines that the crime is not a serious
crime as defined in subdivision (b) of this section, it may
hear such evidence as is admissible under subdivision (c)
of this section and take such other steps as are provided
for in Part 605 of this Title.
- The term "serious crime" shall
include any felony, not resulting in automatic disbarment
under the provisions of subdivision 4 of section 90 of the
Judiciary Law, and any crime, other than a felony, a necessary
element of which, as determined by the statutory or common
law definition of such crime, involves interference with
the administration of justice, criminal contempt of court,
false swearing, misrepresentation, fraud, willful failure
to file income tax returns, deceit, bribery, extortion, misappropriation,
theft, or an attempt or a conspiracy or solicitation of another
to commit a "serious crime"
- A certificate of the conviction of an attorney
for any crime shall be conclusive evidence of his guilt of
that crime in any disciplinary proceeding instituted against
him and based on the conviction, and the attorney may not
offer evidence inconsistent with the essential elements of
the crime for which he 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.
- The clerk of any court within this judicial
department in which an attorney is convicted of a crime shall
within 10 days of said conviction forward a certificate thereof
to the Departmental Disciplinary Committee.
- The pendency of an appeal shall not be grounds
for delaying any action under this section unless the conviction
is from a court which is not a court of record or this court
or the Departmental Disciplinary Committee finds there are
compelling reasons justifying a delay.
- Any attorney to whom these rules shall apply
pursuant to section 603.1 of this Part who has been convicted
of a crime shall promptly advise the Departmental Disciplinary
Committee of that fact.
§ 603.13 Conduct
of Disbarred, Suspended and Resigned Attorneys
- Compliance With Judiciary Law. Disbarred,
suspended and resigned attorneys at law shall comply fully
and completely with the letter and spirit of sections 478,
479, 484 and 486 of the Judiciary Law relating to practicing
as attorneys at law without being admitted and registered,
and soliciting of business on behalf of an attorney at law
and the practice of law by an attorney who has been disbarred,
suspended or convicted of a felony.
- Compensation. A disbarred, suspended or resigned
attorney may not share in any fee for legal services performed
by another attorney during the period of his removal from
the bar. A disbarred, suspended or resigned attorney may
be compensated on a quantum meruit basis for legal services
rendered and disbursements incurred by him prior to the effective
date of the disbarment or suspension order or of his resignation.
The amount and manner of payment of such compensation and
recoverable disbursements shall be fixed by the court on
the application of either the disbarred, suspended or resigned
attorney or the new attorney, on notice to the other as well
as on notice to the client. Such applications shall be made
at special term in the court wherein the action is pending
or at special term of the Supreme Court in the county wherein
the moving attorney maintains his office if an action has
not been commenced. In no event shall the combined legal
fees exceed the amount the client would have been required
to pay had no substitution of attorneys been required.
- Notice to Clients Not Involved in Litigation.
A disbarred, suspended or resigned attorney shall promptly
notify by registered or certified mail, return receipt requested,
all clients being represented in pending matters, other than
litigated or administrative matters or proceedings pending
in any court or agency, of his disbarment or suspension or
resignation and his consequent inability to act as an attorney
after the effective date of his disbarment or suspension
or resignation and shall advise said clients to seek legal
advice elsewhere.
- Notice to Clients Involved in Litigation.
- A disbarred or suspended or resigned
attorney shall promptly notify, by registered or certified
mail, return receipt requested, each of his clients whom
he is representing in litigated matters or administrative
proceedings, and the attorney or attorneys for every
other party in such matter or proceeding, of his disbarment
or suspension or resignation and consequent inability
to act as an attorney after the effective date of his
disbarment or suspension or resignation. The notice to
be given to the client shall advise the prompt substitution
of another attorney or attorneys in his place.
- In the event the client does not obtain
substitute counsel before the effective date of the disbarment
or suspension or resignation, it shall be the responsibility
of the disbarred or suspended or resigned attorney to
move in the court in which the action is pending, or
before the body in which an administrative proceeding
is pending, for leave to withdraw from the action or
proceeding.
- The notice to be given to the attorney
or attorneys for each other party shall state the place
or residence of the client of the disbarred or suspended
or resigned attorney. In addition, notice shall be given
in like manner to the Office of Court Administration
of the State of New York in each matter in which a retainer
statement has been filed.
- Conduct After Entry of Order. The disbarred
or suspended or resigned attorney, after entry of the disbarment
or suspension order, or after entry of the order accepting
the resignation, shall not accept any new retainer or engage
as attorney for another in any new case or legal matter of
any nature. However, during the period between the entry
date of the order and its effective date he may wind up and
complete, on behalf of any client, all matters which were
pending on the entry date.
- Filing Proof of Compliance and Attorney's
Address. Within 10 days after the effective date of the disbarment
or suspension order or the order accepting the resignation,
the disbarred or suspended or resigned attorney shall file
with the clerk of this court, together with proof of service
upon the Departmental Disciplinary Committee, an affidavit
showing that he has fully complied with the provisions of
the order and with these rules. Such affidavit shall also
set forth the residence or other address of the disbarred
or suspended or resigned attorney where communications may
be directed to him.
- Appointment of Attorney to Protect Clients'
Interests and Interests of Disbarred, Suspended or Resigned
Attorney. Whenever it shall be brought to the court's attention
that a disbarred or suspended or resigned attorney shall
have failed or may fail to comply with the provisions of
subdivisions (c), (d) or (f) of this section, this court,
upon such notice to such attorney as this court may direct,
may appoint an attorney or attorneys to inventory the files
of the disbarred or suspended or resigned attorney and to
take such action as seems indicated to protect the interests
of his clients and for the protection of the interests of
the suspended or disbarred or resigned attorney.
- [Disclosure of Information]. Any attorney
so appointed by this court shall not be permitted to disclose
any information contained in any file so inventoried without
the consent of the client to whom such file relates except
as necessary to carry out the order of this court.
- [Attorney Fees]. This court may fix the compensation
to be paid to any attorney appointed by this court under
this section. This compensation may be directed by this court
to be paid as an incident to the costs of the proceeding
in which the charges are incurred and shall be charged in
accordance with law.
- Required Records. A disbarred or suspended
or resigned attorney shall keep and maintain records of the
various steps taken by him under this Part so that, upon
any subsequent proceeding instituted by or against him, proof
of compliance with this Part and with the disbarment or suspension
order or with the order accepting the resignation will be
available.
§ 603.14 Reinstatement
-
- Unless the Court directs otherwise, any
attorney who has been suspended for six months or less
pursuant to disciplinary proceedings shall be reinstated
at the end of the period of suspension upon an order
of the Court. No more than thirty days prior to the expiration
of the term of suspension the attorney must file with
the Court and serve upon the chief counsel an affidavit
stating that the attorney has fully complied with the
requirements of the suspension order and has paid any
required fees and costs. Upon receipt of the affidavit,
the chief counsel shall serve a copy of it upon each
complainant in the disciplinary proceeding that led to
the suspension and give notice to the complainant(s)
that they may submit a response opposing or supporting
the lawyer's affidavit. Such response must be filed with
the chief counsel within twenty days of the date of the
notice. Within thirty days of the date on which the affidavit
was served upon the chief counsel, or within such longer
time as the Court may allow, the chief counsel may file
an affidavit in opposition.
- Any attorney who has been disbarred after
a hearing, or whose name has been stricken from the roll
of attorneys pursuant to section 90(4) of the Judiciary
Law or section 603.11 of this part, may not petition
for reinstatement until the expiration of seven years
from the effective date of the disbarment or removal.
- Any attorney suspended under the provisions
of this part for more than six months shall be entitled
to petition the Court for reinstatement upon the expiration
of the period of suspension.
- A Petition for reinstatement may be granted
only if the petitioner establishes by clear and convincing
evidence that:
- the petitioner has fully complied with
the provisions of the order of disbarment, removal or
suspension;
- the petitioner possesses the requisite
character and general fitness to practice law;
- not more than six (6) months prior to
the filing of the petition for reinstatement, the petitioner
has retaken and attained a passing score on the Multistate
Professional Responsibility Examination described in
section 520.8(a) of the Rules of the Court of Appeals
for the Admission of Attorneys and Counselors at Law,
the passing score being that determined by the New York
State Board of Law Examiners pursuant to section 520.8(c)of
such rules.
- In reviewing an application for reinstatement,
the court may consider the misconduct for which petitioner
was originally disbarred, removed or suspended and any other
relevant conduct or information which may come to the attention
of the court.
- A petition for reinstatement shall be verified
and shall be accompanied by a completed questionnaire as
outlined in subdivision (m) of this section.
- A petitioner shall serve a copy of the petition
for reinstatement upon the Departmental Disciplinary Committee
and upon the Lawyers' Fund for Client Protection. The Court
may refer the matter to the Departmental Disciplinary Committee
and either direct the Chairperson of the Committee to designate
a Hearing Panel or appoint a Referee, or the Court may refer
the matter to the Committee on Character and Fitness, to
inquire into the facts submitted in support of the petition
and all other relevant facts. In its discretion, the Court
may require the petitioner to
- submit additional sworn proof,
- submit to a sworn examination,
- produce records and other papers in connection
with the application,
- provide proof of compliance with all
disciplinary orders, and
- submit to medical or psychiatric examinations
by qualified experts. The designated committees shall
report to the Court in writing.
- The Disciplinary Committee may be heard in
opposition to the petition for reinstatement.
- If the court determines that the petition
for reinstatement satisfies the provisions of subsection
(b) of this rule, the court may grant the petition, or may
refer the petition to the Departmental Disciplinary Committee
and direct the Chairperson of the Committee to designate
a Hearing Panel or appoint a Referee, or the Court may refer
the matter to the Committee on Character and Fitness to conduct
a hearing. At such hearing, both petitioner and counsel for
the Disciplinary Committee may present evidence bearing upon
all relevant issues raised by the petition.
- At the conclusion of the hearing, the Committee
that conducted it shall submit a written report and recommendation
to the court; the report may include a recommendation that
the court condition reinstatement upon compliance with such
additional orders as are deemed appropriate, including but
not limited to the payment of restitution to any person harmed
by petitioner's misconduct.
- In the event that the court approves the
application for reinstatement of an attorney who has resigned,
been disbarred, or been suspended and whose petition for
reinstatement is made seven or more years after the effective
date of his suspension, the petition may thereupon be held
in abeyance for a period of not more than two years. It may
be a condition of the granting of the petition that petitioner
take and attain a passing score on the New York State Bar
Examination described in Section 520.7 of the Rules of the
Court of Appeals within the said two year period. Upon proof
of successful completion of the said Bar Examination, and
in the absence of further misconduct by petitioner, the petition
for reinstatement shall be granted.
- A petition for reinstatement shall not be
accepted for filing within two years following entry of this
court's order denying a previous petition for reinstatement
filed by or on behalf of the petitioner, unless the order
denying the previous petition provides otherwise.
- The court may direct the notice of any reinstatement
petition be published in one or more newspapers in the First
Department pursuant to Section 601.1 of these rules.
- Petitions for reinstatement under these rules
shall be accompanied by payment of a fee of $315, unless
waived or modified by the court upon a showing of hardship.
- Petition for reinstatement.
(Applicant's Last Name)___________ (Date)________
TO: THE APPELLATE DIVISION OF THE SUPREME COURT,
FIRST JUDICIAL DEPARTMENT.
STATE OF NEW YORK)
COUNTY OF _______)
I, ______, hereby apply, pursuant to Judiciary Law, Section
90, and 22 N.Y.C.R.R. Section 603.14, for reinstatement as
an attorney and counselor-at-law licensed to practice in
all the courts of the State of New York. In support of my
application I submit this petition, the form of which has
been prescribed by this Court. Inapplicable provisions have
been stricken and initialed by me.
- My full name is ___________. I have also
been known by the following names______. (If change of
name was made by court order, including marriage, a certified
copy of that order is attached.)
- I was born on (date) at (city-state-county).
- I reside at ______ (If you reside in
more than one place, state all places in which you reside.)
My home telephone number is_______.
My office telephone number is ________.
- On ________I was admitted as an attorney
and counselor-at-law by the Appellate Division of the
Supreme Court of the State of New York, ________Judicial
Department.
- By order of this Court, dated______,
I was disciplined to the following extent:_______. A
certified copy of this Court's order is attached; this
Court's opinion was published in the ___volume, page______,
of the official reports (2d series) for the Appellate
Divisions. My use of the term "discipline" hereafter
refers to the action of this Court by the order here
referred to.
- Since the effective date of my discipline,
I have resided at the following addresses__________.
- The discipline imposed upon me was predicated
upon, or arose out of, my misappropriation or misuse
of the real or personal property of others. Attached
to this application is a full listing of each property,
its dollar value, the name of the true owner, and the
extent to which I have yet to make full restitution.
Where I still owe a party under this section, I have
also attached a copy of a restitution agreement, signed
by that owner and myself, setting forth the terms of
my repayment obligations.
- On the date of my discipline, the following
matters, which were not the basis of that order, were
pending against me before the Departmental Disciplinary
Committee:______.
- On the effective date of discipline,
I was also admitted to practice in the following Courts/jurisdictions:_______.
- Based upon this Court's discipline of
me, I also have been disciplined in the following way(s):_______.
- In addition, dating back to my original
admission to the bar up until the present, I have also
been disciplined for other actions or activities, in
the following ways:_______,______.
- Prior to my discipline, my law practice
involved the following areas of law:_______.
- Since the effective date of my discipline,
I have engaged in the practice of law in other jurisdiction(s),
on the date(s) and in the manner specified:______.
- Since the effective date of my discipline,
I have been engaged in the following legal-type or law-related
activities:___.
- Since the effective date of my discipline
I have had the following employment or been engaged in
the following business (set forth names, dates, addresses)______.
- I am attaching copies of all federal,
state and local tax returns filed by me for the past
two years.
- At the time of my discipline, I took
the following affirmative steps to notify my clients
of my inability to continue representing them: .
- Pursuant to 22 N.Y.C.R.R. Section 603.13(f),
I filed an affidavit of compliance on (date).
-or-
I did not file an affidavit of compliance, as required
by this Court's rules, because_______.
- Since the date of my discipline, I have
maintained the following bank accounts and brokerage
accounts_________.
- There presently exist the following unpaid
judgments against me or a partnership, corporation or
other business entity of which I am an employee or in
which I have an ownership interest_________.
- Since my discipline, I, or a partnership,
corporation or other business entity in which I have
an ownership interest, have/has been involved in the
following lawsuits, to the extent indicated_______.
- I, or a partnership, corporation or other
business entity in which I have an ownership interest,
petitioned to be adjudicated a bankrupt on (date) to
(court).
-
- Since my discipline, I applied for
the following license(s) which required proof of
good character:______.
- These applications resulted in the
following action(s)__.
- Since my admission to the bar, I have
had the following licenses suspended or revoked for the
stated reason(s), unrelated to this Court's order of
discipline:_______.
- Since my discipline, on the date(s) specified
I have been arrested, charged with, indicted, convicted,
tried, and/or have pleaded guilty to the following violation(s),
misdemeanor(s) and/or felony(ies):_______.
- Since my discipline, I have been the
subject of the following governmental investigation(s)
on the specified date(s), which resulted in the charge
or complaint indicated being brought against me:________.
- Other than the passage of time and the
absence of additional misconduct, the following facts
establish that I possess the requisite character and
general fitness to be reinstated as an attorney in New
York:________.
- I have made the following efforts to
maintain or renew my general fitness to practice law,
including continuing legal education and otherwise, during
the period following my disbarment, removal, or suspension:_____.
- I was treated for alcoholism and/or drug
abuse on the date(s) and under the circumstances here
set forth:_____.
- The following fact(s), not heretofore
disclosed to this Court, are relevant to this application
and might tend by some degree to induce the Court to
look less favorably upon this application:________.
I UNDERSTAND THAT THE DEPARTMENTAL DISCIPLINARY COMMITTEE,
THE COMMITTEE ON CHARACTER AND FITNESS, OR OTHER ATTORNEY
AUTHORIZED BY THE COURT, MAY TAKE ADDITIONAL INVESTIGATIVE
STEPS DEEMED APPROPRIATE IN ACTING UPON THIS APPLICATION
FOR REINSTATEMENT. I WILL FULLY COOPERATE WITH ANY REQUEST
FOR INFORMATION AND MAKE MYSELF AVAILABLE FOR SWORN INTERVIEWS
OR HEARINGS, AS REQUIRED.
________________________(Signature of Applicant)
Sworn to before me this______day of
________, 19____
(STATE OF NEW YORK)
COUNTY OF )
I,________being duly sworn, say: I am the petitioner
in the within action; I have read the foregoing petition
and know the contents thereof; the same is true to my
own knowledge, except as to the matters therein stated
to be alleged on information and belief, and as to those
matters I believe it to be true.
Sworn to before me this_______day of________19___
§ 603.15 Random
Review and Audit
- Availability of Bookkeeping Records; Random
Review and Audit.
The financial records required to be maintained pursuant
to Rule DR9-102 of the Code of Professional Responsibility,
as jointly adopted by the Appellate Divisions of the Supreme
Court, or by any other rule of this Court, shall be made
available for inspection, copying and determination of compliance
with court rules, to a duly authorized representative of
the court pursuant to the issuance, on a randomly selected
basis, of a notice or subpoena by the Departmental Disciplinary
Committee.
- Confidentiality. All matters, records and
proceedings relating to compliance with Rule DR 9-102 of
the Code of Professional Responsibility and this section,
including the selection of an attorney for review hereunder,
shall be kept confidential in accordance with applicable
law, as and to the extent required of matters relating to
professional discipline.
- Regulations and Procedures for Random Review
and Audit.
Prior to the issuance of any notice or subpoena in connection
with the random review and audit program established by this
section, the Departmental Disciplinary Committee shall propose
regulations and procedures for the proper administration
of the program. The court shall approve such of the regulations
and procedures of the Departmental Disciplinary Committee
as it may deem appropriate, and only such regulations and
procedures as have been approved by the court shall become
effective.
- Biennial Affirmation of Compliance. Any attorney
subject to this court's jurisdiction shall execute that portion
of the biennial registration statement provided by the Office
of Court Administration, affirming that the attorney has
read and is in compliance with DR9-102 of the Code of Professional
Responsibility, as jointly adopted by the Appellate Divisions
of the Supreme Court, and with this section. The affirmation
shall be available at all times to the Departmental Disciplinary
Committee.
No affirmation of compliance shall be required from a full-time
judge or justice of the Unified Court System of the State
of New York, or of a court of any other state, or of a federal
court.
§ 603.16 Proceedings
Where Attorney Is Declared Incompetent or Alleged to Be Incapacitated
- Suspension Upon Judicial Determination of
Incompetency or an Involuntary Commitment. Where an attorney
subject to this Part pursuant to the first sentence of section
603.1 of this Part has been judicially declared incompetent
or incapable of caring for his property or has been involuntarily
committed to a mental hospital, this court, upon proper proof
of the fact, shall enter an order suspending such attorney
from the practice of the law, effective immediately and for
an indefinite period and until the further order of this
court. A copy of such order shall be served upon such attorney,
his committee or conservator and/or director of mental hospital
in such manner as this court may direct.
- Proceeding to Determine Alleged Incapacity
and Suspension Upon Such Determination.
- Whenever the Departmental Disciplinary
Committee shall petition this court to determine whether
an attorney is incapacitated from continuing to practice
law by reason of physical or mental infirmity or illness
or because of addiction to drugs or intoxicants, this
court may take or direct such action as it deems necessary
or proper to determine whether the attorney is so incapacitated,
including examination of the attorney by such qualified
experts as this court shall designate. If, upon due consideration
of the matter, this court is satisfied and concludes
that the attorney is incapacitated from continuing to
practice law, it shall enter an order suspending him
on the ground of such disability for an indefinite period
and until the further order of this court and any pending
disciplinary proceedings against the attorney shall be
held in abeyance.
- This court may provide for such notice
to the respondent-attorney of proceedings in the matter
as is deemed proper and advisable and may appoint an
attorney to represent the respondent, if he is without
adequate representation.
- Procedure When Respondent Claims Disability
During Course of Proceeding.
- If, during the course of a disciplinary
proceeding, the respondent contends that he is suffering
from a disability by reason of physical or mental infirmity
or illness, or because of addiction to drugs or intoxicants,
which makes it impossible for the respondent adequately
to defend himself, this court thereupon shall enter an
order suspending the respondent from continuing to practice
law until a determination of the respondent's capacity
to continue the practice of law is made in a proceeding
instituted in accordance with the provisions of subdivision
(b) of this section.
- If, in the course of a proceeding under
this section or in a disciplinary proceeding, this court
shall determine that the respondent is not incapacitated
from practicing law, it shall take such action as it
deems proper and advisable, including a direction for
the resumption of the disciplinary proceeding against
the respondent.
- Appointment of Attorney to Protect Clients'
and Suspended Attorney's Interests.
- Whenever an attorney is suspended for
incapacity or disability, this court, upon such notice
to him as this court may direct, may appoint an attorney
or attorneys to inventory the files of the suspended
attorney and to take such action as seems indicated to
protect the interests of his clients and for the protection
of the interests of the suspended attorney.
- Any attorney so appointed by this court
shall not be permitted to disclose any information contained
in any file so inventoried without the consent of the
client to whom such file relates except as necessary
to carry out the order of this court.
- Reinstatement Upon Termination of Disability.
- Any attorney suspended under the provisions
of this section shall be entitled to apply for reinstatement
at such intervals as this court may direct in the order
of suspension or any modification thereof. Such application
shall be granted by this court upon showing by clear
and convincing evidence that the attorney's disability
has been removed and he is fit to resume the practice
of law. Upon such application, this court may take or
direct such action as it deems necessary or proper for
a determination as to whether the attorney's disability
has been removed, including a direction of an examination
of the attorney by such qualified experts as this court
shall designate. In its discretion, this court may direct
that the expense of such examination shall be paid by
the attorney.
- Where an attorney has been suspended
by an order in accordance with the provisions of paragraph
(a) of this section and thereafter, in proceedings duly
taken, he has been judicially declared to be competent,
this court may dispense with further evidence that his
disability has been removed and may direct his reinstatement
upon such terms as are deemed proper and advisable.
- Burden of Proof. In a proceeding seeking
an order of suspension under this section, the burden of
proof shall rest with the petitioner. In a proceeding seeking
an order terminating a suspension under this section, the
burden of proof shall rest with the suspended attorney.
- Waiver of Doctor-Patient Privilege Upon Application
for Reinstatement.
The filing of an application for reinstatement by an attorney
suspended for disability shall be deemed to constitute a
waiver of any doctor-patient privilege existing between the
attorney and any psychiatrist, psychologist, physician or
hospital who or which has examined or treated the attorney
during the period of his disability. The attorney shall be
required to disclose the name of every psychiatrist, psychologist,
physician and hospital by whom or at which the attorney has
been examined or treated since his suspension and he shall
furnish to this court written consent to each to divulge
such information and records as requested by court-appointed
experts or by the clerk of this court.
- Payment of Expenses of Proceedings.
- The necessary costs and disbursements
of an agency, committee or appointed attorney in conducting
a proceeding under this section shall be paid in accordance
with subdivision 6 of section 90 of the Judiciary Law.
- This court may fix the compensation to
be paid to any attorney or expert appointed by this court
under this section. This compensation may be directed
by this court to be paid as an incident to the costs
of the proceeding in which the charges are incurred and
shall be charged in accordance with law.
§ 603.17 Combining
or Grouping of Claims
- No attorney for a claimant or plaintiff shall
for the purpose of settlement or payment combine or group
two or more claims or causes of action or judgments therefor
on behalf of separate clients, and each such demand or action
shall be settled or compromised independently upon its own
merits and with regard to the individual interest of the
client. No attorney for a defendant shall participate in
the settlement of any such claims or actions on the basis
directly or indirectly of combining or grouping claims or
actions belonging to different persons.
§ 603.18 Champerty
and Maintenance
- No attorney shall by himself, or by or in
the name of another person, either before or after action
brought, promise, give, or procure, or permit to be promised
or given any valuable consideration to any person as an inducement
to placing in his hands, or in the hands of another person,
any claim for the purpose of making a claim or bringing an
action or special proceeding thereon, or defending the same;
nor shall any attorney, directly or indirectly, as a consideration
for such retainer, pay any expenses attending the prosecution
or defense of any such claim or action.
§ 603.19 Attorneys
Assigned by the Court as Counsel for a Defendant in a Criminal
Case
- No attorney assigned by a court as counsel
for a defendant in any criminal case shall in any manner
demand, accept, receive or agree to accept or receive any
payment, compensation, emolument, gratuity or reward, or
any promise of payment, compensation, emolument, gratuity
or reward or any money, property or thing of value or of
personal advantage from such defendant or from any other
person, except as expressly authorized by statute or by written
order of the court duly entered upon its minutes.
§ 603.20 Prohibition
Against Gratuities
- No attorney shall give any gift, bequest,
favor or loan to any judge or any employee of any court or
any member of his family residing in his household or to
any member, officer, or employee of any governmental agency
or any member of his family residing in his household, where
such attorney has had or is likely to have any professional
or official transaction with such court or governmental agency.
§ 603.21 Practice
of Law by Non-judicial Personnel
- An attorney who is employed as a public officer
or employee in any court in this judicial department shall
not maintain an office for the private practice of law, alone
or with others, hold himself out to be in the private practice
of law, or engage in the private practice of law; such attorney
shall not participate, directly or indirectly, as attorney
or counsel in any action or proceeding, pending before any
court or any administrative board, agency, committee or commission
of any government, or in the preparation or subscription
of briefs, papers, or documents pertaining thereto.
- By special permission secured from the presiding
justice of this judicial department as to each professional
engagement, a person referred to in subdivision (a) of this
section may engage in the private practice of law as to matters
not pending before a court or governmental agency, in uncontested
matters in the Surrogate's Court, uncontested accountings
in the Supreme Court, and other ex parte applications not
preliminary or incidental to litigated or contested matters.
Such approval, which shall continue only to the completion
of the particular engagement for which permission was obtained,
shall be sought by application in writing to the presiding
justice of this judicial department (processed through the
immediate supervisor and the administrative judge or other
head of the court or agency in which applicant is employed
for his comment and recommendation including restrictions,
if any), which shall state the position occupied, all pertinent
information as to the matter to be handled (including the
name of the client engaging such attorney and the prior relationship,
if any, between such client and said attorney) and that in
the event of litigation the applicant will immediately withdraw
as attorney and notify his administrative judge or other
head of the court or agency thereof.
- A person referred to in subdivision (a) of
this section shall not engage in any other practice of law
which is incompatible with or would reflect adversely upon
the performance of his duties.
§ 603.22 [Rescinded]
- Former §603.22. Section, relating to
advertising by attorneys was rescinded effective Sept. 1,
1990. See, now DR 2-101 set out following § 1040, post.
§ 603.23 Attorney's
Affidavit in Agency and Private Placement Adoptions
- Every attorne
|
