DISBARMENT - BAR ASSOCIATION DISCIPLINARY ACTION
] | [ISSUE & DISPOSITION
| [AUTHORITIES CITED
] | [COMMENTARY
Delany, a licensed attorney in the state of New York, pled guilty in the
United States District Court for the Southern District of New York to three
federal crimes: tampering with a witness (18
U.S.C. § 1512 (1994))
, knowingly attempting to evade and defeat
income tax (26
U.S.C. § 7201 (1994))
, and mail fraud (18
U.S.C. § 1341 (1994))
. Following Delaney's guilty plea but before
final judgment of conviction, the Grievance Committee for the Ninth Judicial
District petitioned the Appellate Division, Second Department, to disbar
Delany under Judiciary
Law § 90(4)(a)
, or suspend him from practice under Judiciary
Law § 90(4)(f)
. The Grievance Committee also requested authorization
to initiate disciplinary proceedings against Delany.
The Second Department suspended Delany from the practice of law, authorized
disciplinary proceedings, and referred the matter to a Special Referee.
The Grievance Committee petitioned the Special Referee for discipline and
contended that Delany had been convicted of a serious crime based upon
his guilty plea. The Special Referee sustained the charges. Upon the Grievance
Committee's motion to confirm the Special Referee's report, the Second
Department approved the report and ordered disbarment.
Delany appealed the disbarment, contending that his guilty plea did
not constitute a conviction. The Court of Appeals reversed the order for
disbarment, with costs, and denied the motion to confirm the Special Referee's
Whether the Appellate Division may impose a final sanction on an attorney
who has been convicted of serious crimes as defined by Judiciary Law §
90(4)(d), even though a final judgment of conviction for those crimes has
not been rendered.
No. A final sanction may not be imposed absent a judgment of conviction
for a serious crime. Order of the Appellate Division imposing final sanction
of disbarment reversed.
3.) Cases Cited:
Matter of Johnston, 75 N.Y.2d 403 (N.Y. 1990).
4.) Other Sources Cited:
Matter of Thies, 45 N.Y.2d 865 (N.Y. 1978).
Matter of Chu, 42 N.Y.2d 490 (N.Y. 1977).
Mississippi Bar v McGuire, 647 So. 2d 706 (Miss. 1994).
State Bar of Texas v. Heard, 603 S.W.2d 829, 831 (Tex. 1980).
Jud. Law § 90(4) (McKinney 1983).
Crim. Proc. Law § 1.20(13) (McKinney 1983).
Annotation, Attorney's Conviction in Foreign of Federal Jurisdiction
as ground for Disciplinary Action, 98 A.L.R.3d 357 (1980 & Supp.
William T. Ballagher, Ideologies of Professionalism and the Politics
of Self-Regulation in the California State Bar, 22 Pepp. L. Rev. 485
Robert A. Brazener, Annotation, Disciplinary Action Against Attorney
Prior to Exhaustion of Appellate Review of Conviction, 76 A.L.R.3d
1061 (1977 & Supp. 1995).
Francis M. Dougherty, Annotation, Validity and Construction of Procedures
to Temporarily Suspend Attorney from Practice, or Place Attorney on Inactive
Status, Pending Investigation of, and Action Upon, Disciplinary Charges,
80 A.L.R.4th 136 (1990 & Supp. 1995).
Sheldon R. Shapiro, Annotation, Disbarment or Suspension of Attorney
in One State as Affecting Right to Continue Practice in Another State,
81 A.L.R.3d 1281 (1977 & Supp. 1995).
David Weinreb, Comment, When is a Felony a Felony? Automatic Disbarment
in New York After In Re Johnston, 57 Brook. L. Rev. 269 (1991).
1.) State of the Law Before Delany.
appears to have arisen under an unusual set of circumstances.
Under New York's Judiciary Law, an appellate division of any New York supreme
court is authorized to suspend or disbar ("strike from the rolls" in the
language of the statute) lawyers guilty of certain misconduct. See
Jud. Law § 90(2)
(McKinney 1983). ("[T]he appellate division of
the supreme court in each department is authorized to censure, suspend
from practice or remove from office any attorney . . . guilty of [certain
misconduct]."). New York's Judiciary Law distinguishes between temporary
suspensions and permanent disbarment. The Judiciary Law also authorizes
the appellate division to disbar an attorney upon conviction
a felony. N.Y.
Jud. Law § 90(4)(b)
(McKinney 1983). In contrast, the Judiciary
Law affords immediate suspension of an attorney convicted of a "serious
Jud. Law § 90(4)(f)
(McKinney 1983). The Judiciary Law limits
the appellate division's authority to make "a final order
censure or removal from office" contingent upon "a judgment of conviction
becoming final." N.Y.
Jud. Law § 90(4)(g)
In the proceeding before the appellate division that gave rise to Delany,
a Special Referee found that appellant had committed a "serious crime"
Jud. Law § 90(4)(d) (McKinney 1983) and recommended appellant's
disbarment pursuant to N.Y.
Jud. Law § 90(4)(f) (McKinney 1983). In Delany, the Appellate
Division for the Second Department accepted the referee's recommendation
for disbarment before appellant's "judgment of conviction" for the
"serious crime" was final. The New York Court of Appeals accepted appellant's
argument that conviction of tampering, mail, fraud, and income tax evasion
(all "serious crimes" under N.Y.
Jud. Law § 90(4)(d) (McKinney 1983)) were not "felonies" under
Jud. Law § 90(4)(b) (McKinney 1983)).
Under Delany, a "judgment of conviction" must meet the requirements
set forth in N.Y.
Crim. Proc. Law § 1.20(13) (McKinney 1983)(defining "conviction"
as "entry of a plea of guilty to, or a verdict of guilty upon, an accusatory
instrument other than a felony complaint, or to one or more counts of such
instrument"). The Delaney court rejected respondent's contention
that the law's silence (in respect to the court's disbarment authority)
allowed the appellate division to sanction a lawyer prior to final judgment
of conviction. Since Delany had not yet received a sentence in the federal
courts, the Court of Appeals held that the requirement of a "judgment of
conviction" was not satisfied.
2.) Effect of Delany on Current Law.
Although an apparently unremarkable case, Delany
the statute requires the appellate division to obtain more than a conviction
to disbar an attorney-at-law for a "serious crime" under N.Y.
Jud. Law § 90(4)(g)
(McKinney 1983). The holding comports with
the plain meaning of the statute. The Delany
court held that the
appellate divisions may not disbar a lawyer before receipt of a final judgment
3.) Questions Unanswered.
The Governor's message approving the amendments to the Judiciary Law at
issue in Delany
discusses the contrast between automatic disbarment
on conviction of a felony, N.Y.
Jud. Law § 90(4)(b)
(McKinney 1983), and automatic suspension
(with the right to hearing) that results from conviction of a "serious
Jud. Law § 90(4)(f), (g)
(McKinney 1983). See
Memorandum approving L 1979 ch. 674. Before the amendment, a lawyer could
be automatically disbarred for committing a "felony" in another jurisdiction
even though that crime was not a felony (and, consequently, deemed relatively
minor) under New York law. See id.
; Matter of Chu
, 42 N.Y.2d
490 (N.Y. 1977); Matter of Thies
, 45 N.Y.2d 865 (N.Y. 1978). Under
Jud. Law § 90(4)(d)
(McKinney 1983), there are two kinds of "serious
crimes." First, there are crimes that are felonies under the laws of some
"other state, district or territory of the United States." Second, there
are crimes for which a necessary element "includes interference with the
administration of justice, false swearing, misrepresentation, fraud, willful
failure to file income tax returns, deceit, bribery, extortion, misappropriation,
theft, or an attempt or conspiracy or solicitation of another to commit
a serious crime." N.Y.
Jud. Law § 90(4)(d)
The record presented did not make clear if the crimes of which Delaney
had been convicted were of the former or latter type of "serious crime."
(It is also not clear from the opinion whether the crimes of which appellant
had been convicted fell into each category of "serious crime.") The Governor's
memorandum approving the amendments to the Judiciary Law at issue in Delany
states that the purpose of the statute is to prevent application of a harsh
result when "automatic disbarment of an attorney [results from] conviction
of a relatively minor offense merely because it is denominated as a felony
in the jurisdiction where the offense occured." Governor's Memorandum approving
L 1979 ch. 674. As a result, the amendment appears to offer protection
to lawyers convicted of certain out-of-state felonies. The Court did not
address whether this protection extends to both classes equally.
4.)Survey of the Law in Other Jurisdictions
The procedural question in Delany
is narrow. Each state's determining
bodies must weigh how much evidence or procedure or both is necessary when
disbarring an attorney suspected of criminal behavior or serious misconduct.
Must an attorney be suspected, investigated, charged, convicted, or sentenced
before disbarment takes place? What effect does pendency of appeal have?
How heavily does the nature of the conviction weigh? Conflicting factors
lead jurisdictions to respond differently. How should a court or legislature
weigh the interests of protecting citizens from dishonest and incompetent
attorneys against the interests of reserving judgment until attorney misconduct
is clearly proved? How necessary is it that the legal profession regulate
itself, and what are the inherent dangers of self-regulation?
The most cautious and attorney-protective approach withholds final disbarment
until a convicted attorney exhausts the appellate process. Mississippi
follows this approach. Mississippi Bar v McGuire, 647 So. 2d 706
(Miss. 1994) (supporting rule that expiration of time to file an appeal
or conclusion of an appeal is required before disbarment of an attorney
convicted of a felony). Texas similarly suspends an attorney convicted
of a felony during the pendency of an appeal State Bar of Texas v. Heard,
603 S.W.2d 829, 831 (Tex. 1980). See generally, Robert A. Brazener,
Annotation, Disciplinary Action Against Attorney Prior to Exhaustion
of Appellate Review of Conviction, 76 A.L.R.3d 1061 (1977 & Supp.
1995) (comparing various jurisdictions which view conviction as grounds
for disciplinary action notwithstanding pendency of appeals with those
jurisdictions which take the appeal into consideration when taking disciplinary
Other jurisdictions move more quickly, taking disciplinary action before
conviction. See generally, Francis M. Dougherty, Annotation, Validity
and Construction of Procedures to Temporarily Suspend Attorney from Practice,
or Place Attorney on Inactive Status, Pending Investigation of, and Action
Upon, Disciplinary Charges, 80 A.L.R.4th 136 (1990 & Supp. 1995)
(discussing the due process objections raised by disciplinary action without
final judgment of attorney misconduct and different jurisdictions' response
to those objections).
The effect of a criminal charge, conviction, or judgment in one state
upon an attorney's status in another is a related issue. New York's approach
in Johnston is not the only possible response. One commentator was
highly critical of Johnston. See David Weinreb, Comment,
When is a Felony a Felony? Automatic Disbarment in New York After In
Re Johnston, 57 Brook. L. Rev. 269 (1991) (criticizing the requirement
that facts which lead to felony conviction under one state's criminal law
must also, if prosecuted under New York's criminal law, lead to a felony
conviction before the other jurisdiction's judgment of conviction requires
New York disbarment). See generally, Annotation, Attorney's Conviction
in Foreign of Federal Jurisdiction as ground for Disciplinary Action,
98 A.L.R.3d 357 (1980 & Supp. 1995) (discussing the range of disciplinary
actions a state may take when one of its attorneys is convicted of a crime
in another state, under a federal statute, or in another country). Disciplinary
action in one state may affect a lawyer's ability to practice in another.
See Sheldon R. Shapiro, Annotation, Disbarment or Suspension
of Attorney in One State as Affecting Right to Continue Practice in Another
State, 81 A.L.R.3d 1281 (1977 & Supp. 1995) (discussing recognition
of sister state's disciplinary action against one of its attorneys under
both the mandatory doctrine of full faith and credit as well as the discretionary
doctrine of comity).
The general principle of self-regulation as it applies to California
disciplinary practice is discussed in William T. Ballagher, Ideologies
of Professionalism and the Politics of Self-Regulation in the California
State Bar, 22 Pepp. L. Rev. 485 (1995).
Kathryn W. Becker, '97
Rene M. Devlin, '97
Quentin C. Faust, '97
Melissa E. Hart, '97
James D. McCann, '97
Farah Mollo, '97
Charles A. Samuelson, '96