Questions About Diversion, Interim Suspension, Resignation and the Standard for Imposition of NY Attorney Ethics Discipline

What are some of the ways an NY attorney ethics matter can reach disposition?

Publications & Presentations

Is there a role for a referee to hear a NY formal disciplinary proceeding?¹

If the ethics proceeding raises an issue that is appropriate for a hearing by a referee, any party or the court can request such a referral. There is a deadline of 60 days for the referee to complete their work and file a written report “setting forth the referee’s findings and recommendations.” 22 CRR-NY 1240.8(b)(1).

The referee is required to find each element of the ethics infraction by a fair preponderance of the evidence. Likewise, the referee’s report is subject to challenge by way of motions “to affirm or disaffirm… as permitted by the court.” Id.

What sort of items are appropriate for the court to consider in imposing discipline in a NY attorney ethics proceeding?
There is a wide range of factors that the court may consider in deciding the quantum of discipline to be imposed in a New York attorney ethics proceeding, including

(a) the nature of the misconduct;
(b) the aggravating and mitigating circumstances;
(c) the parties’ contentions regarding the appropriate discipline; and
(d) the applicable case law and precedent.
22 CRR-NY 1240.8(b)(2)

What is the standard for imposing a suspension on an interim basis during the pendency of a NY attorney ethics investigation or proceeding?

There are unusual circumstances in which an attorney can be suspended before the formal imposition of discipline following a full-blown hearing. This is known as an “interim suspension” and can be based on any of the following criteria:

(1) the respondent’s default in responding to a petition, notice to appear for formal interview, examination, or pursuant to subpoena under the Rules (see citation below);
(2) the respondent’s admission under oath to the commission of professional misconduct;
(3) the respondent’s failure to comply with a lawful demand of the Court or a Committee in an investigation or proceeding under the Rules;
(4) the respondent’s willful failure or refusal to pay money owed to a client, which debt is demonstrated by an admission, judgment, or other clear and convincing evidence; or
(5) other uncontroverted evidence of professional misconduct.
22 CRR-NY 1240.9

What is the standard for an attorney to submit a voluntary resignation from the New York State Bar?
There are circumstances under which an attorney might decide to submit their resignation from the bar. Obviously, this is an extreme and unusual option.

In order to resign from the bar, the attorney must serve an application upon the ethics committee recounting the charges or allegations and attesting that

(1) the proposed resignation is rendered voluntarily, without coercion or duress, and with full awareness of the consequences, and that the Court’s approval of the application shall result in the entry of an order disbarring the respondent, and

(2) the respondent cannot successfully defend against the charges or allegations of misconduct.
22 CRR-NY 1240.10

Is there a different procedure for resignation when there has been misappropriation of client funds?

An attorney resigning from the NY bar for reasons that include allegations of misappropriation or misapplied funds held in trust has an additional submission they must provide. The rationale is that merely resigning from the bar does not address the central issue (misappropriation of funds). There is also a need to consider whether restitution must be made. Under such circumstances, the respondent must engage in a three-step process:

(1) identify the person or persons whose money or property was willfully misappropriated or misapplied;

(2) specify the value of such money or property; and

(3) consent to the entry of an order requiring the respondent to make monetary restitution pursuant to Judiciary Law §90(6-a).
22 CRR-NY 1240.10(b)

Does the impairment of the attorney constitute a basis to stay the hearing?

There are situations in which the allegation of an ethics violation is linked directly or indirectly to an attorney’s impairment based upon such items as alcohol or substance abuse or other mental or physical health issues. Under such circumstances, the investigation or proceeding may be stayed, and the court may “direct the respondent to complete an appropriate treatment and monitoring program approved by the Court.” 22 CRR-NY 1240.11(a)

There are a number of factors that the court is required to consider in such a situation, including

(1) the nature of the alleged misconduct;

(2) whether the alleged misconduct occurred during a time period when the respondent suffered from the claimed impairment; and

(3) whether diverting the respondent to a monitoring program is in the public interest.
Id.

Once the program is complete, the court also has a number of options.

Upon submission of written proof of successful completion of the monitoring program, the Court may direct the discontinuance or resumption of the investigation, charges or proceeding, or take other appropriate action. In the event the respondent fails to comply with the terms of a Court-ordered monitoring program, or the respondent commits additional misconduct during the pendency of the investigation or proceeding, the Court may, after affording the parties an opportunity to be heard, rescind the order of diversion and direct resumption of the disciplinary charges or investigation.
Id.

¹The citations and quotes set forth on this webpage were accurate as of 2021. Please remember to update them if they apply to your matter.

The Nissenbaum Law Group’s Approach to NY Attorney Ethics Defense

In sum, the NY ethics procedures have a number of permutations besides simply meting out a quantum of discipline. The Nissenbaum Law Group defends attorneys facing ethics allegations by seeking to explore a range of avenues and options—such as those set forth above—in seeking to reach its client’s goal.

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PUBLICATIONS & PRESENTATIONS

Gary D. Nissenbaum, Esq.

Presented Seminar, Six Aspects of Attorney Ethics Enforcement in NJ, NY & PA That You May Not Have Heard About Before, Lawline, March 2024
Panelist, New Jersey Trust and Business Accounting, New Jersey Institute for Continuing Legal Education, February 2021
Presented Seminar, How to Avoid Serious Mistakes When Facing an Ethics Grievance or Random Trust Account Audit, Essex County Bar Association, December 2020
Presented Seminar, “Good Grievance, Charlie Brown!” Latest Developments in NJ Ethics Law and Procedure, New Jersey Institute for Continuing Legal Education, July 2020
Presented Seminar, How to Avoid Serious Mistakes When Facing an Ethics Grievance, Wilshire Grand Hotel, December 2019
Presented Seminar, Attorney Ethics Grievances: 20 Insights from the Trenches, Wilshire Grand Hotel, December 2016
Presented Seminar, Attorney Ethics Grievance Process, Union County Bar Association, 2011

Anthony C. Gunst, Esq.

Presented Seminar, Six Aspects of Attorney Ethics Enforcement in NJ, NY & PA That You May Not Have Heard About Before, Lawline, March 2024
Presented Seminar, How to Avoid Serious Mistakes When Facing an Attorney Ethics Matter, New Jersey Association of Legal Administrators, April 2023

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