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ATTORNEY DISCIPLINE



Jurisdiction of Appellate Division

Attorney Grievance Plan

Commencement of Formal Proceedings

Responding to Formal Charges

           Answer

           Appearance Before Court

Proceedings in Appellate Division

           Denial of Charges

           Admission of Charges

           Requests for Adjournments

           Appearance Following Hearing

           Motions

           Oral Argument

           2014 Scheduled Return Dates

Decisions

Resignation From Practice

Reinstatement

Diversion Rule





Jurisdiction of Appellate Division

The authority to discipline attorneys is vested exclusively in the Appellate Division (Judiciary Law § 90 [2]).



Attorney Grievance Plan

The Court has, by rule, appointed Attorney Grievance Committees for each of the three judicial districts in the Fourth Department and has authorized the Committees to investigate allegations of misconduct by attorneys engaged in the practice of law in the Fourth Department (22 NYCRR 1022.19)



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Commencement of Formal Proceedings

When the Attorney Grievance Committee has determined that there is probable cause to believe that an attorney has committed professional misconduct, a formal proceeding is commenced.

In order to commence a proceeding, Chief Counsel is required to file an original notice of petition, a petition, five copies thereof and proof of service on the attorney who is the subject of the proceeding. The petition must be made returnable at 2:00 p.m. on the second Tuesday of the next scheduled term of Court. The petition must be filed at least 20 days prior to the commencement of the court term when it is returnable (22 NYCRR 1022.20 [a], [c]).



Answer to Formal Charges

The respondent attorney must file a verified answer, five copies thereof and proof of service on counsel for the Attorney Grievance Committee within 20 days of service of the petition. The answer must contain, with respect to each paragraph of the petition, specific admissions or denials (CPLR 3020; 22 NYCRR 1022.20 [c][2], [3]).



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Appearance Before the Court

The respondent attorney must personally appear before the Court on the return date of the petition and on any adjourned date unless otherwise directed by the Court. Failure to appear or to file a verified answer in response to the petition constitutes a default and may result in suspension. (22 NYCRR 1022.20 [b] [2])



Denial of Charges

When a respondent, in the answer, denies material allegations of the petition, the Court may dispense with the required appearance and refer the matter for a hearing (22 NYCRR 1022.20 [d] [1]) or may direct the attorney to appear to clarify the status of the pleadings. If the matter is referred for a hearing, a copy of the order of reference is sent to the parties.



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Admission of Charges

When a respondent, in the answer, admits the factual allegations of the petition, the Court will schedule an appearance for the respondent to be heard in mitigation of the charges. A scheduling letter is sent to the parties with dates for the filing of papers. The respondent attorney may waive in writing the opportunity to appear (22 NYCRR 1022.20 [d] [2]).



Request for Adjournments

Once a proceeding has been commenced in the Appellate Division, only the Court may adjourn the matter. Requests for adjournments must be made in advance of the scheduled appearance, in writing, directed to the Presiding Justice with a copy to counsel for the Attorney Grievance Committee. Court staff will notify the parties regarding the Court’s determination.



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Appearance Following Hearing

Following the completion of a hearing and the filing of a report by a referee, the Court will schedule an appearance for the argument of motions by the parties and to afford the respondent attorney an opportunity to be heard in mitigation. The respondent attorney may waive in writing the opportunity to appear (22 NYCRR 1022.20 [d] [2]).



Motions

The Court permits oral argument of: motions directed to a referee’s report (motions to confirm, disaffirm, or dismiss charges); motions for immediate suspension; or motions for orders punishing attorneys for contempt. Oral argument is not permitted on any other type of motion unless otherwise directed by the Court.

The Court requires that the moving party file the original motion papers, five copies thereof and proof of service on counsel for the opposing party. Motions shall be made returnable during a term of Court on the date scheduled for the Court to hear disciplinary matters. Motions shall be served with sufficient notice to all parties, as set forth in the CPLR and the rules of the Court (22 NYCRR 1000.13 [a] [2]). Responding papers are due on the Friday before the return date.



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Oral Argument

A respondent attorney who is scheduled to appear before the Court in a disciplinary proceeding shall sign in with the Clerk’s Office prior to 2:00 p.m. on the day of the scheduled appearance or prior to the time designated by the Court for the appearance.

Disciplinary proceedings are conducted in the courtroom before a panel of five justices. Because the proceedings are confidential by statute (Judiciary Law § 90 [10]), the proceedings are conducted in a closed courtroom and only parties, counsel to parties and certain members of the Court’s staff are permitted to be present.



2014 Scheduled Return Dates
Attorney Disciplinary Matters

January 21, 2014

March 4, 2014

April 15, 2014

May 27, 2014

June 24, 2014

September 9, 2014

October 28, 2014

December 9, 2014



Decisions

In the event that disciplinary charges against a respondent attorney are sustained, the decision is public and will be posted on the website maintained by the Court at 3:00 p.m. on a scheduled decision release date. Orders determining disciplinary matters are mailed to the parties.



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Resignation From Practice

An attorney who is the subject of a disciplinary investigation or proceeding may submit to the Court an affidavit or affirmation of resignation in the form set forth in the Court’s rule (22 NYCRR 1022.28, Appendix A), along with proof of service on counsel for the Attorney Grievance Committee.

In the event that the Court determines that the resignation complies with the rule, a public order will be entered accepting the resignation, striking the name of the attorney from the roll of attorneys, and, when restitution is owed, directing the payment of restitution.



Reinstatement

Attorneys disbarred for misconduct or stricken from the roll pursuant to resignation or conviction of a felony, and attorneys suspended from the practice of law for misconduct, may apply for reinstatement to practice in accordance with Rule 1022.28 (22 NYCRR 1022.28). Disbarred attorneys may apply for reinstatement after the expiration of seven years from the entry of the order of disbarment; suspended attorneys may apply for reinstatement after the expiration of the period of suspension.

An application for reinstatement shall be made by motion and served with sufficient notice to all parties as set forth in the CPLR and rules of the Court (22 NYCRR 1000.13 [a] [2]). Necessary papers in support of an application for reinstatement are listed in Rule 1022.28 (22 NYCRR 1022.28) and must include a completed petition in the form included in Appendix A of the Court’s rule and a copy of a letter to the Lawyers’ Fund for Client Protection notifying the Fund that the application has been filed. An applicant for reinstatement must file the original application, five copies thereof and proof of service of one copy of the application on counsel for the Attorney Grievance Committee.

Attorneys applying for reinstatement following disbarment or suspension from practice for a period in excess of six months, are required to appear before the Court on the return date of the application. Attorneys suspended for a period of six months or less shall not be required to appear unless otherwise directed by the Court and are not required to file in support of the application for reinstatement a completed petition in the form set forth in Appendix A, 22 NYCRR 1022.28, unless directed to do so by the Court.

Attorneys removed from the roll of attorneys after voluntary resignation may apply for reinstatement at any time upon a showing of changed circumstances and payment of registration fees outstanding at the time of the resignation and that accrued between entry of the order removing the attorney’s name from the roll and the filing of the application for reinstatement. Attorneys removed from the roll for a period of one year or more are required to appear before the Court on the return date of the application. Necessary papers in support of the application include: a copy of the order removing the attorney from the roll; the Per Curiam Opinion of the Court, if any; proof of service of one copy of the application on counsel for the Attorney Grievance Committee; a copy of a letter to the Lawyers’ Fund for Client Protection notifying the fund that the application has been filed; and, a copy of a completed questionnaire in the form included in Appendix A, if directed by the Court (22 NYCRR 1022.28 [d]).



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Diversion Rule

When an attorney who is the subject of a disciplinary investigation or proceeding raises in defense of the charges or as a mitigating factor alcohol or substance abuse, or, upon the recommendation of counsel to the Attorney Grievance Committee, the Court may stay the matter under investigation or the proceeding and direct that the attorney complete a monitoring program sponsored by an approved lawyers’ assistance program (22 NYCRR 1022.20 [d] [3] [a]).

Upon proof of successful completion of a Court-ordered monitoring program, the Court may dismiss the charges. In the event of failure to successfully complete such a program or the commission of additional misconduct during the pendency of the proceeding, the Court may rescind the order diverting the attorney to a monitoring program and reinstate the charges or matter under investigation (see 22 NYCRR 1022.20 [d] [3] [b]).



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