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Matter of Delany, 87 N.Y.2d  508 (February 8, 1996).

DISBARMENT - BAR ASSOCIATION DISCIPLINARY ACTION

[SUMMARY] | [ISSUE & DISPOSITION] | [AUTHORITIES CITED] | [COMMENTARY

SUMMARY

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 report.

ANALYSIS

1.) Issue

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.

2.) Disposition

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:

Key

  • 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).
  • N.Y. Jud. Law § 90(4) (McKinney 1983).
  • N.Y. 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. 1995).
  • William T. Ballagher, Ideologies of Professionalism and the Politics of Self-Regulation in the California State Bar, 22 Pepp. L. Rev. 485 (1995).
  • 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).

5.) Commentary

1.) State of the Law Before Delany.

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 N.Y. 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 of 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 crime," N.Y. Jud. Law § 90(4)(f) (McKinney 1983). The Judiciary Law limits the appellate division's authority to make "a final order of suspension, censure or removal from office" contingent upon "a judgment of conviction becoming final." N.Y. Jud. Law § 90(4)(g) (McKinney 1983).

In the proceeding before the appellate division that gave rise to Delany, a Special Referee found that appellant had committed a "serious crime" under N.Y. 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 N.Y. 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 clarifies that 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 of conviction.

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 crime," N.Y. Jud. Law § 90(4)(f), (g) (McKinney 1983). See Governor's 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 N.Y. 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) (McKinney 1983).

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 action).

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).

Prepared By:

  • 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