1. a. Upon the state board of law examiners
certifying that a person has passed the required examination, or that
the examination has been dispensed with, the appellate division of the
supreme court in the department to which such person shall have been
certified by the state board of law examiners, if it shall be satisfied
that such person possesses the character and general fitness requisite
for an attorney and counsellor-at-law and has satisfied the requirements
of section 3-503 of the general obligations law, shall admit him to
practice as such attorney and counsellor-at-law in all the courts of
this state, provided that he has in all respects complied with the rules
of the court of appeals and the rules of the appellate divisions
relating to the admission of attorneys.
b. Upon the application, pursuant to the rules of the court of
appeals, of any person who has been admitted to practice law in another
state or territory or the District of Columbia of the United States or
in a foreign country, to be admitted to practice as an attorney and
counsellor-at-law in the courts of this state without taking the regular
bar examination, the appellate division of the supreme court, if it
shall be satisfied that such person is currently admitted to the bar in
such other jurisdiction or jurisdictions, that at least one such
jurisdiction in which he is so admitted would similarly admit an
attorney or counsellor-at-law admitted to practice in New York state to
its bar without examination and that such person possesses the character
and general fitness requisite for an attorney and counsellor-at-law and
has satisfied the requirements of section 3-503 of the general
obligations law, shall admit him to practice as such attorney and
counsellor-at-law in all the courts of this state, provided, that he has
in all respects complied with the rules of the court of appeals and the
rules of the appellate divisions relating to the admission of attorneys.
Such application, which shall conform to the requirements of section
3-503 of the general obligations law, shall be submitted to the
appellate division of the supreme court in the department specified in
the rules of the court of appeals.
c. The members of the committee appointed by the appellate division in
each department to investigate the character and fitness of applicants
for admission to the bar, shall be entitled to their necessary
traveling, hotel and other expenses, incurred in the performance of
their duties, payable by the state out of moneys appropriated therefor,
upon certificate of the presiding justice of the appellate division by
which such committee is appointed.
d. The committee on character and fitness appointed by the appellate
division of the supreme court in the first judicial department and the
committee on character and fitness appointed by the appellate division
of the supreme court of the second judicial department, may each, with
the written consent of the justices of each of such appellate divisions
or a majority of such justices, acting for their respective appellate
divisions, from time to time, appoint and remove a secretary,
stenographers and assistants, and procure a suitable office for each
committee, properly furnished and equipped and all books, stationery,
blanks, postal cards, expressage and postage stamps as shall be required
for the proper performance of the duties of each such committee.
e. The salaries of such secretary, stenographers and assistants shall
be fixed for each department by the justices of the appellate division
in each department or a majority of them in each department.
f. The salaries of such secretary, stenographers and assistants and
the necessary expenses under the terms of this act in the first judicial
department, shall, in the said first judicial department, be paid by the
comptroller of the city of New York.
g. The salaries of such secretary, stenographers and assistants and
the necessary expenses under the terms of this act in the second
judicial department shall be certified by the presiding justice of such
department to the state comptroller who shall audit the same. The state
department of taxation and finance shall pay such salaries and expenses
and shall apportion the same among the counties comprising the second
judicial department. Such counties shall reimburse the state for such
compensation. The time and method of such apportionment and the time and
method of such reimbursement shall be as specified in section
seventy-four of this chapter.
2. The supreme court shall have power and control over attorneys and
counsellors-at-law and all persons practicing or assuming to practice
law, and the appellate division of the supreme court in each department
is authorized to censure, suspend from practice or remove from office
any attorney and counsellor-at-law admitted to practice who is guilty of
professional misconduct, malpractice, fraud, deceit, crime or
misdemeanor, or any conduct prejudicial to the administration of
justice; and the appellate division of the supreme court is hereby
authorized to revoke such admission for any misrepresentation or
suppression of any information in connection with the application for
admission to practice.
It shall be the duty of the appellate division to insert in each order
of suspension or removal hereafter rendered a provision which shall
command the attorney and counsellor-at-law thereafter to desist and
refrain from the practice of law in any form, either as principal or as
agent, clerk or employee of another. In addition it shall forbid the
performance of any of the following acts, to wit:
a. The appearance as an attorney or counsellor-at-law before any
court, judge, justice, board, commission or other public authority.
b. The giving to another of an opinion as to the law or its
application, or of any advice in relation thereto.
In case of suspension only, the order may limit the command to the
period of time within which such suspension shall continue, and if
justice so requires may further limit the scope thereof.
If an attorney and counsellor-at-law has been heretofore removed from
office, the appellate division shall upon application of any attorney
and counsellor-at-law, or of any incorporated bar association, and upon
such notice to the respondent as may be required, amend the order of
removal by adding thereto as a part thereof, provisions similar to those
required to be inserted in orders hereafter made.
If a certified copy of such order or of such amended order, be served
upon the attorney and counsellor-at-law suspended or removed from
office, a violation thereof may be punished as a contempt of court.
2-a. a. The provisions of this subdivision shall apply in all cases of
an attorney licensed, registered or admitted to practice in this state
who has failed after receiving appropriate notice, to comply with a
summons, subpoena or warrant relating to a paternity or child support
proceeding involving him or her personally, or who is in arrears in
payment of child support or combined child and spousal support which
matter shall be referred to the appropriate appellate division by a
court pursuant to the requirements of section two hundred forty-four-c
of the domestic relations law or pursuant to section four hundred
fifty-eight-b or five hundred forty-eight-b of the family court act.
b. Upon receipt of an order from the court based on arrears in payment
of child support or combined child and spousal support pursuant to one
of the foregoing provisions of law, the appropriate appellate division
within thirty days of receipt of such order, if it finds such person to
be so licensed, registered or admitted, shall provide notice to such
attorney of, and initiate, a hearing which shall be held by it at least
twenty days and no more than thirty days after the sending of such
notice to the attorney. The hearing shall be held solely for the purpose
of determining whether there exists as of the date of the hearing proof
that full payment of all arrears of support established by the order of
the court to be due from the licensed, registered or admitted attorney
have been paid. Proof of such payment shall be a certified check showing
full payment of established arrears or a notice issued by the court or
the support collection unit where the order is payable to the support
collection unit designated by the appropriate social services district.
Such notice shall state that full payment of all arrears of support
established by the order of the court to be due have been paid. The
licensed attorney shall be given full opportunity to present such proof
of payment at the hearing in person or by counsel. The only issue to be
determined as a result of the hearing is whether the arrears have been
paid. No evidence with respect to the appropriateness of the court order
or ability of the respondent party in arrears to comply with such order
shall be received or considered by the disciplinary committee.
c. Upon receipt of an order from the court based on failure to comply
with a summons, subpoena, or warrant relating to a paternity or child
support proceeding, the appropriate appellate division within thirty
days of receipt of such order, if it finds such person to be so
licensed, registered or admitted, shall provide notice to such attorney
that his or her license shall be suspended within sixty days of such
notice to the attorney unless the conditions in paragraph e of this
section are met.
d. Notwithstanding any inconsistent provision of this section or of
any other provision of law to the contrary, the license to practice law
in this state of an attorney admitted to practice shall be suspended by
the appellate division if, at the hearing provided for by paragraph b of
this subdivision, the licensed attorney fails to present proof of
payments as required by such subdivision. Such suspension shall not be
lifted unless the original court or the support collection unit, where
the court order is payable to the support collection unit designated by
the appropriate social services district, issues notice to the appellate
division that full payment of all arrears of support established by the
order of the original court to be due have been paid.
e. Notwithstanding any inconsistent provision of this section or of
any other provision of law to the contrary, the license of an attorney
admitted to practice law in this state shall be suspended by the
appellate division, in accordance with paragraph c of this subdivision
unless the court terminates its order to commence suspension
proceedings. Such suspension shall not be lifted unless the court issues
an order to the appellate division terminating its order to commence
suspension proceedings.
f. The appellate division shall inform the original court of all
actions taken hereunder.
g. This subdivision two-a applies to paternity and child support
proceedings commenced under, and support obligations paid pursuant to
any order of child support or child and spousal support issued under
provisions of section two hundred thirty-six or two hundred forty of the
domestic relations law, or article four, five, five-A or five-B of the
family court act.
h. Notwithstanding any inconsistent provision of this section or of
any other provision of law to the contrary, the provisions of this
subdivision two-a shall apply to the exclusion of any other requirements
of this section and to the exclusion of any other requirement of law to
the contrary.
3. The suspension or removal of an attorney or counsellor-at-law, by
the appellate division of the supreme court, operates as a suspension or
removal in every court of the state.
4. a. Any person being an attorney and counsellor-at-law who shall be
convicted of a felony as defined in paragraph e of this subdivision,
shall upon such conviction, cease to be an attorney and
counsellor-at-law, or to be competent to practice law as such.
b. Whenever any attorney and counsellor-at-law shall be convicted of a
felony as defined in paragraph e of this subdivision, there may be
presented to the appellate division of the supreme court a certified or
exemplified copy of the judgment of such conviction, and thereupon the
name of the person so convicted shall, by order of the court, be struck
from the roll of attorneys.
c. Whenever an attorney shall be convicted of a crime in a court of
record of the United States or of any state, territory or district,
including this state, whether by a plea of guilty or nolo contendere or
from a verdict after trial or otherwise, the attorney shall file, within
thirty days thereafter, with the appellate division of the supreme
court, the record of such conviction.
The failure of the attorney to so file shall be deemed professional
misconduct provided, however, that the appellate division may upon
application of the attorney, grant an extension upon good cause shown.
d. For purposes of this subdivision, the term serious crime shall mean
any criminal offense denominated a felony under the laws of any state,
district or territory or of the United States which does not constitute
a felony under the laws of this state, and any other crime a necessary
element of which, as determined by statutory or common law definition of
such crime, 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.
e. For purposes of this subdivision, the term felony shall mean any
criminal offense classified as a felony under the laws of this state 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.
f. Any attorney and counsellor-at-law convicted of a serious crime, as
defined in paragraph d of this subdivision, whether by plea of guilty or
nolo contendere or from a verdict after trial or otherwise, shall be
suspended upon the receipt by the appellate division of the supreme
court of the record of such conviction until a final order is made
pursuant to paragraph g of this subdivision.
Upon good cause shown the appellate division of the supreme court may,
upon application of the attorney or on its own motion, set aside such
suspension when it appears consistent with the maintenance of the
integrity and honor of the profession, the protection of the public and
the interest of justice.
g. Upon a judgment of conviction against an attorney becoming final
the appellate division of the supreme court shall order the attorney to
show cause why a final order of suspension, censure or removal from
office should not be made.
h. If the attorney requests a hearing, the appellate division of the
supreme court shall refer the proceeding to a referee, justice or judge
appointed by the appellate division for hearing, report and
recommendation.
After said hearing, the appellate division may impose such discipline
as it deems proper under the facts and circumstances.
5. a. If such removal or debarment was based upon conviction for a
serious crime or upon a felony conviction as defined in subdivision four
of this section, and such felony conviction was subsequently reversed or
pardoned by the president of the United States, or governor of this or
another state of the United States, the appellate division shall have
power to vacate or modify such order or debarment, provided, however,
that if such attorney or counsellor-at-law has been removed from
practice in another jurisdiction, a pardon in said jurisdiction shall
not be a basis for application for re-admission in this jurisdiction
unless he shall have been readmitted in the jurisdiction where pardoned.
b. If such removal or debarment was based upon conviction for a felony
as defined in subdivision four of this section, the appellate division
shall have power to vacate or modify such order or debarment after a
period of seven years provided that such person has not been convicted
of a crime during such seven-year period.
c. An attorney and counsellor-at-law who has been convicted of a
felony without the state and whose name has been struck from the roll of
attorneys prior to July thirteenth, nineteen hundred seventy-nine by
virtue of the provisions of subdivision four of this section may, if he
alleges that such felony committed without the state would not
constitute a felony if committed within the state, petition the
appellate division to vacate or modify such debarment. If the appellate
division finds that the felony of which the attorney and
counsellor-at-law has been convicted without the state would not
constitute a felony if committed within the state, it shall grant a
hearing and may retroactively vacate or modify such debarment and impose
such discipline as it deems just and proper under the facts and
circumstances.
The attorney and counsellor-at-law shall petition for reinstatement by
filing in the appellate division a copy of the order of removal together
with a request for a hearing pursuant to the provisions of this
paragraph. Upon such application, the order of removal shall be deemed
an order of suspension for the purposes of a proceeding pursuant to this
paragraph.
6. Before an attorney or counsellor-at-law is suspended or removed as
prescribed in this section, a copy of the charges against him must be
delivered to him personally within or without the state or, in case it
is established to the satisfaction of the presiding justice of the
appellate division of the supreme court to which the charges have been
presented, that he cannot with due diligence be served personally, the
same may be served upon him by mail, publication or otherwise as the
said presiding justice may direct, and he must be allowed an opportunity
of being heard in his defense. In all cases where the charges are served
in any manner other than personally, and the attorney and
counsellor-at-law so served does not appear, an application may be made
by such attorney or in his behalf to the presiding justice of the
appellate division of the supreme court to whom the charges were
presented at any time within one year after the rendition of the
judgment, or final order of suspension or removal, and upon good cause
shown and upon such terms as may be deemed just by such presiding
justice, such attorney and counsellor-at-law must be allowed to defend
himself against such charges.
The justices of the appellate division in any judicial department, or
a majority of them, may make an order directing the expenses of any
disciplinary proceedings, and the necessary costs and disbursements of
the petitioner in prosecuting such charges, including the expense of any
preliminary investigation in relation to professional conduct of an
attorney and counsellor-at-law, to be paid out of funds appropriated to
the office of court administration for that purpose.
6-a. a. Where the appellate division of supreme court orders the
censure, suspension from practice or removal from office of an attorney
or counsellor-at-law following disciplinary proceedings at which it
found, based upon a preponderance of the legally admissible evidence,
that such attorney or counsellor-at-law wilfully misappropriated or
misapplied money or property in the practice of law, its order may
require him or her to make monetary restitution in accordance with this
subdivision. Its order also may require that he or she reimburse the
lawyers' fund for client protection of the state of New York for awards
made to the person whose money or property was wilfully misappropriated
or misapplied.
b. Monetary restitution, as authorized hereunder, shall be made to the
person whose money or property was wilfully misappropriated or
misapplied and shall be for the amount or value of such money or
property, as found in the disciplinary proceedings. In the event that
such person dies prior to completion of such restitution, any amount
remaining to be paid shall be paid to the estate of the deceased.
c. Any payment made as restitution pursuant to this subdivision shall
not limit, preclude or impair any liability for damages in any civil
action or proceeding for an amount in excess of such payment; nor shall
any order of the appellate division made hereunder deprive a criminal
court of any authority pursuant to article sixty of the penal law.
d. An order issued pursuant to this subdivision may be entered as a
civil judgment. Such judgment shall be enforceable as a money judgment
in any court of competent jurisdiction by any person to whom payments
are due thereunder, or by the lawyers' fund for client protection where
it has been subrogated to the rights of such person.
e. Where an attorney or counsellor-at-law is permitted to resign from
office, the appellate division may, if appropriate, issue an order as
provided herein requiring him or her to make payments specified by this
subdivision.
f. Notwithstanding any other provision of this subdivision, no order
may be issued hereunder unless the person required to make payments
under such order first is given an opportunity to be heard in opposition
thereto.
7. In addition to the duties prescribed by section seven hundred of
the county law, it shall be the duty of any district attorney within a
department, when so designated by the justices of the appellate division
of the supreme court in such department, or a majority of them, to
prosecute all proceedings for the removal or suspension of attorneys and
counsellors-at-law or the said justices, or a majority of them may
appoint any attorney and counsellor-at-law to conduct a preliminary
investigation and to prosecute any disciplinary proceedings and, during
or upon the termination of the investigation or proceedings, may fix the
compensation to be paid to such attorney and counsellor-at-law for the
services rendered, which compensation shall be a charge against the
county specified in his certificate and shall be paid thereon.
8. Any petitioner or respondent in a disciplinary proceeding against
an attorney or counsellor-at-law under this section, including a bar
association or any other corporation or association, shall have the
right to appeal to the court of appeals from a final order of any
appellate division in such proceeding upon questions of law involved
therein, subject to the limitations prescribed by section three of
article six of the constitution of this state.
9. No objection shall be taken to the appointment of any member of the
bar to act as referee or judge in a disciplinary proceeding under this
section on the ground that he is a member of a bar association or other
corporation or association which is the petitioner therein.
10. Any statute or rule to the contrary notwithstanding, all papers,
records and documents upon the application or examination of any person
for admission as an attorney and counsellor at law and upon any
complaint, inquiry, investigation or proceeding relating to the conduct
or discipline of an attorney or attorneys, shall be sealed and be deemed
private and confidential. However, upon good cause being shown, the
justices of the appellate division having jurisdiction are empowered, in
their discretion, by written order, to permit to be divulged all or any
part of such papers, records and documents. In the discretion of the
presiding or acting presiding justice of said appellate division, such
order may be made either without notice to the persons or attorneys to
be affected thereby or upon such notice to them as he may direct. In
furtherance of the purpose of this subdivision, said justices are also
empowered, in their discretion, from time to time to make such rules as
they may deem necessary. Without regard to the foregoing, in the event
that charges are sustained by the justices of the appellate division
having jurisdiction in any complaint, investigation or proceeding
relating to the conduct or discipline of any attorney, the records and
documents in relation thereto shall be deemed public records.