By Sarah Diane McShea [Originally published in NYPRR September 2002]
For more than a century, New York has adhered to the strict rule that lawyers convicted of felony offenses should not be permitted to continue as members of the bar. A lawyer convicted of a state felony (or its equivalent) is automatically disbarred, by operation of law, without the intervention or even the knowledge of any court or disciplinary agency.
New York Judiciary Law §90(4)(a) provides that a lawyer “who shall be convicted of a felony… shall upon such conviction, cease to be an attorney and counsellor-at-law, or to be competent to practice law as such.” Judiciary Law §90(4)(e) defines a “felony” as any New York state felony or “any criminal offense committed in any other state, district or territory of the United States and classified as a felony therein which if committed within this state, would constitute a felony in this state.”
Nearly 50 years ago, the Court of Appeals held that disbarment occurs automatically when a lawyer is convicted of a felony offense and that striking the lawyer’s name from the roll of attorneys “is no more than a formal recording of the existing fact of disbarment. It is a solemn pronouncement but not a new adjudication.” [Matter of Ginsberg, 1 N.Y.2d 144, 146–147, 151 N.Y.S.2d 361, 362–63 (1956).]
The “automatic” nature of New York’s felony disbarment rule has troubled commentators, for it leaves no room for the exercise of discretion by the four Appellate Divisions in imposing sanctions on lawyers whose criminal conduct may range from felony assault (the classic barroom brawl) to murder for hire or narcotics trafficking.
New York is unique in that automatic disbarment occurs at the moment a lawyer is convicted of a felony, even if no order of disbarment is actually entered by a disciplinary court. The visual image is helpful: at the moment a lawyer pleads guilty to a felony offense, the lawyer’s law license simply vanishes. In short, disbarment does not require any act by any disciplinary committee or any court. Although the event is later “recorded” when the lawyer’s name is struck from the roll of attorneys, disbarment has already occurred by operation of law. The quaintness of the procedure should not belie the seriousness of the result. Disbarment is real and immediate, even if the conviction is not known for years. Lawyers are required to report their convictions to the disciplinary authorities, and most do so. Lawyers who fail to report their convictions may find that their later efforts to be reinstated are unsuccessful.
While the statute is short and simple in its articulation of the ironclad felony-disbarment rule, familiarity with the governing rules and case law is important for a lawyer facing criminal charges or conviction. A lawyer’s problems are not over just because the criminal charges are favorably resolved; disciplinary charges may be brought even though a lawyer has been acquitted of the criminal charges. In Matter of Strier [190 A.D.2d 140, 598 N.Y.S.2d 200 (1st Dept. 1993)], a lawyer was found guilty in a disciplinary hearing of giving $1,000 to one client to bribe a State Liquor Authority official to stop the issuance of a liquor license to a competitor of another client. The lawyer had previously been acquitted of similar criminal charges.
Disbarment Occurs at Plea or Verdict
Disbarment occurs when the lawyer pleads guilty to a felony or a guilty verdict is rendered. In Matter of David [145 A.D.2d 150, 537 N.Y.S.2d 814 (1st Dept. 1989)], the Appellate Division held that a lawyer who pled guilty to insider trading securities fraud and then cooperated with the prosecutor ‘s office was automatically disbarred at the time of his plea, not when he was sentenced more than two years later. According to the Court, under New York criminal procedure law, conviction occurs at plea or verdict. [CPL §1.20(13)]. While judgment is not entered until after sentencing, “state law makes clear that it is the ‘conviction’ and not the ‘judgment of conviction’ which triggers automatic disbarment.” In Matter of Lyons [205 A.D.2d 239, 618 N.Y.S.2d 789 (1st Dept. 1994)], the court wrote that a “felony conviction calls for automatic disbarment upon entry of the plea; the timing of the sentence is not important.”
It is not material for disciplinary purposes that the lawyer has not yet been sentenced. In Matter of Porges [744 N.Y.S.2d 179 (1st Dept. 2002)], the court disbarred an immigration attorney convicted of participating in a racketeering enterprise to smuggle illegal aliens into the United States, an offense which the court found “essentially similar” to the New York felony of enterprise corruption. According to the court, Porges, who was guilty of supervising his law firm’s preparation of false political asylum applications which were filed with the INS, “ceased being an attorney in New York upon the entry of his plea of guilty.” The disbarment order was issued before Porges was sentenced!
An author’s word of caution: At present, there is no uniformity concerning when disbarment occurs. This can be important for the individual lawyer, who must transition quickly out of law practice and also begin to plan for possible reinstatement seven years later. While the First Department more frequently holds that disbarment occurs at the moment of plea or verdict, it does not do so in all cases, nor do other courts agree, although the rule and the Court of Appeals’ precedents seem clear on this point.
Stays of Sentence or Appeals Don’t Matter
The inflexibility of the felony disbarment rule has been upheld for many years. In Matter of Dague [91 A.D.2d 336, 458 N.Y.S.2d 588 (1st Dept. 1983)], the Appellate Division held that a lawyer convicted of bribing a witness and obstructing governmental administration was automatically disbarred. The lawyer’s sentence was stayed pending appeal, but the court would not stay his disbarment, which had occurred by operation of law: “Stay of execution of sentence does not alter the fact of conviction. Respondent ceased to be an attorney and counselor-at-law upon conviction of a felony, and was thus rendered incompetent to practice law in this state. Disbarment under such circumstances is automatic and the instant proceeding to strike respondent’s name from the roll of attorneys is merely a formality.”
Efforts by convicted attorneys to postpone the effective date of disbarment until their appeals are exhausted have proved completely unsuccessful. A former U.S. Attorney General argued that New York’s automatic disbarment rule was unconstitutional because it was applied even though his felony conviction of perjury and obstruction of justice was being appealed. The Court of Appeals rejected the argument, upholding the validity of New York’s rule. [Matter of Mitchell, 40 N.Y.2d 153, 386 N.Y.S.2d 95 (1976).]
A successful appeal (or a pardon) will entitle the lawyer to apply for an order vacating or modifying the disbarment order. The Appellate Divisions are authorized to reinstate lawyers whose felony convictions have been reversed, but they are not obliged to do so. Indeed, many lawyers who are automatically disbarred for felony convictions are never reinstated, even though they may petition for reinstatement seven years after disbarment. Note, however, that if the lawyer was convicted in another jurisdiction than New York and “removed from practice” in that jurisdiction, a subsequent pardon will not automatically bring reinstatement in New York. Reinstatement will be considered only if the other jurisdiction first readmits the lawyer to practice. [Judiciary Law §90(5)(a).]
Conviction in Foreign Jurisdiction
Conviction in another jurisdiction of a crime defined as a felony in that jurisdiction does not necessarily invoke the New York automatic disbarment rule. A lawyer convicted of a crime in another jurisdiction faces automatic disbarment only if the crime is classified as a felony in that jurisdiction and if the crime “would constitute a felony” if committed in New York. [Judiciary Law §90(4)(e).]
In Matter of Margiotta [60 N.Y.2d 147, 468 N.Y.S.2d 857 (1983)], the Court of Appeals held that the foreign jurisdiction felony must be “essentially similar” to a New York felony or automatic disbarment would not result. Although even this test had its vocal and articulate critics, most notably in Judge Cooke’s dissent in Margiotta, it served for many years as the uniform test in New York. The Appellate Divisions routinely analyzed federal and other states’ criminal statutes to determine whether a foreign jurisdiction felony was “essentially similar” to a New York felony for disciplinary purposes.
However, in the last decade, a second test, based upon a lawyer’s admissions during plea allocution, has been used in some, but not all, criminal conviction cases. In Matter of Catalfo [181 A.D.2d 213, 586 N.Y.S.2d 256 (1st Dept. 1992)], the Court relied on Catalfo’s admissions during plea and found that disbarment was the appropriate result whether or not the federal felony had a state felony analog. In a series of cases, the courts have reviewed lawyer’s admissions during allocution, finding in many cases that the lawyer has admitted conduct which would support a felony conviction in New York and, therefore, trigger automatic disbarment.
While the “essential similarity” test was not without its drawbacks, at least it fostered a certain consistency in the disciplinary penalties meted out to lawyers convicted of felony offenses in other jurisdictions. The weakness of the “allocution” analysis is that it has created great uncertainty and unevenness in result, both from case to case and from Appellate Division to Appellate Division.
It seems timely and appropriate for the Court of Appeals to take a fresh look at the two tests presently used by the Appellate Divisions to determine which foreign jurisdiction felony convictions will trigger automatic disbarment. Or perhaps it is time for the court to review the utility and fairness of the felony automatic disbarment rule itself.
The New York automatic disbarment statute was originally justified by the certainty of the results it yielded. It is often said that the integrity of the New York legal profession is maintained, at least in part, by the Legislature’s refusal to permit convicted felons to continue practicing law. New York’s automatic disbarment rule remained intact while other states modified or rejected similar rules. Our swift (and harsh) justice — imagine a license that vanishes without a prosecutor’s filing a petition or a court’s issuing an order — has impressed (and shocked) other jurisdictions. It may be time for another look at the felony disbarment statute, which has neither increased the public’s confidence in the legal profession nor demonstrably improved the quality of the bar.
Sarah Diane McShea represents lawyers and law firms in ethics matters and disciplinary proceedings.
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