Why attorney license revocation proceedings in New York are criminal proceedings

 

Why attorney license revocation proceedings in New York are criminal proceedings

 

Tatiana Neroni, Juris Doctor

October 19, 2021 (C)

Contents

List of references/authorities. 1

The US Supreme Court rule to determine whether proceedings are criminal in nature, despite the government’s declaration that they are civil in nature. 2

The goal of retribution reflected in New York State statute. 2

The goal of retribution/punishment reflected in the fact that attorneys in New York, with the loss of law license, lose certain important rights they had before they obtained their law license. 2

The goal of deterrence in New York State Rule governing imposition of attorney “discipline”/punsihment 4

 

List of references/authorities

Court cases

Bell v. Wolfish, 441 U. S. 520, 539, n. 20 (1979)................................................... 2

Kennedy v. Mendoza-Martinez, 372 US 144 (1963).................................... 2, 3, 4

Matter of Aretakis, 2008 NY Slip Op 09693, 57 AD3d 1160 (3^rd Dept., 2008).............................................................. 5

Matter of Friedberg, 2021 NY Slip Op 02109, 194 AD3d 126 (1^st Dept., April 6, 2021)................................................ 4

Matter of Walker, 2020 NY Slip Op 00835, 181 AD3d 62 (1^st Dept., 2020) 5

Matter of Yu, 2016 NY Slip Op 07103, 145 AD3d 43, (1^st Dept., 2016)........... 5

United States v. Halper, 490 US 435 (1989)............................................... 2, 3

Statutes

New York Judiciary Law §90(4)(a).... 2, 5

New York State Judiciary Law § 90(2)(b).............................................................. 3

Other Authorities

Jewish Virtual Library, Banishment....... 4

Regulations

22 NYCRR 1240.8(b)(2)......................... 5

Constitutional Provisions

U.S. Const., Amendment 14, Due Process Clause.................................................. 5

U.S. Const., Amendment 14, Equal Protection Clause................................. 5

The US Supreme Court rule to determine whether proceedings are criminal in nature, despite the government’s declaration that they are civil in nature

The US Supreme Court has provided that a declaration by the state of the supposedly civil nature of a proceeding does not stop, but only starts an analysis whether the nature of the proceeding is, instead, criminal, on its face and as applied in certain specific cases.  According to the U.S. Supreme Court, a finding that the proceeding, in addition to civil, remedial goals, has also the goal of either punishment, or deterrence, defines the proceeding as criminal in nature[1].

The goal of retribution reflected in New York State statute

In attorney license revocation proceedings in the State of New York, the goal of retribution appears in a statute requiring an automatic permanent revocation of attorney license (“disbarment”) in case of conviction of a serious crime, a felony[2] – which is both punishment for past actions and deterrence of others.

The goal of retribution/punishment reflected in the fact that attorneys in New York, with the loss of law license, lose certain important rights they had before they obtained their law license

The U.S. Supreme Court has several additional factors from a case prior to US v Halper ) on which U.S. v Halper) relies to determine whether proceedings declared as “civil” by the government are criminal proceedings in nature[3].

These factors are:

• 1.     whether the sanction involves an affirmative disability or restraint,
• 2.     whether it has historically been regarded as a punishment,
• 3.     whether it comes into play only on a finding of scienter,
• 4.     whether its operation will promote the traditional aims of punishment—retribution and deterrence,
• 5.     whether the behavior to which it applies is already a crime,
• 6.     whether an alternative purpose to which it may rationally be connected is assignable for it, and
• 7.     whether it appears excessive in relation to the alternative purpose assigned[28] are all relevant to the inquiry, and may often point in differing directions

As shown in US v Halper), 26 years after deciding Kennedy, the U.S. Supreme court later singled out factor #4 from the Kennedy list and narrowed the list, allowing the determination of criminal nature of a declared-civil proceeding on that factor alone, so, other factors can be used as a strengthening point of such a determination.

Whether the sanction brings with it a loss of rights is prominently the factor #1 in the Kennedy list.

In attorney license revocation proceedings, the loss of rights accompanying revocation of the license and caused by such revocation is prominently shown:

• 1.     policy # 1, legislative – by forbidding every attorney who have lost his license the rights that attorneys had before receiving such a license, namely, participating in democracy which requires “expressing to another opinion about the law or its application”[4], and
• 2.     policy # 2, by a court precedent - by court treatment of attorneys whose law licenses are revoked – forbidding attorneys occupations allowed to other people without a law license, and that had been allowed to suspended or disbarred attorneys before they ever obtained their law licenses[5].

Policy # 2 above appears to parallel the ancient punishment of banishment[6] that involved an additional enforcement measure - a punishment of anybody who would harbor and give shelter and/or comfort to a state-banished person.

Therefore, policy # 2 reflects the 1^st factor of the Kennedy list above, as well as the 5^th factor from the same list – whether behavior to which the sanction applies is already a crime.  It was a crime, not in this country, age and structure of government – but it was, and a serious one.

Notably, banishment of attorneys, punishment by starvation, after their licenses are revoked is so important for New York courts that courts have invented the draconian policy #2, ruling the remaining attorneys by terror and forbidding licensed attorneys to engage in legal conduct of hiring non-lawyer personnel if that legal conduct involves compassion toward their banished colleagues – courts (and not only New York courts) revoke licenses of attorneys as punishment for harboring/giving comfort and compassion/hiring banished attorneys to work in positions that do not require law licenses (secretaries, paralegals)[7]. 

The goal of deterrence in New York State Rule governing imposition of attorney “discipline”/punsihment

The goal of deterrence appears in the New York State rule regarding dispositions in attorney license revocation proceedings:

“Discipline. In presenting arguments on the issue of appropriate

discipline for misconduct, the parties may cite any relevant factor,

including but not limited to the nature of the misconduct, aggravating

and mitigating circumstances, the parties’ contentions regarding

the appropriate sanction under the American Bar Association’s

Standards for Imposing Lawyer Sanctions, and applicable case law

and precedent. Upon a finding that any person covered by these

Rules has committed professional misconduct, the Court may

impose discipline or take other action that is authorized by law and,

in the discretion of the Court, is appropriate to protect the public,

maintain the honor and integrity of the profession, or

deter others from committing similar misconduct[8].”

 

New York courts revoking attorney licenses apply and reference this rule and openly state in license revocation decisions that in addition to the “remedial” purpose of the law license revocation proceedings the sanction in such a proceeding has a goal to deter the same person and others from similar misconduct[9].

Moreover, New York courts apply the 2^nd punishment of disbarment for the same past conduct not only for a criminal felony conviction[10], but also for some criminal misdemeanor convictions[11], which courts equate with sanctions in civil proceedings[12].

Thus, attorney revocation proceedings in New York are criminal in nature on their face and as applied in specific cases since rules governing such proceedings contain, in addition to civil, “remedial” goals, both of the penal goals declared by the US Supreme Court as designating the criminal nature of a proceeding – retribution and deterrence.

Consequently, attorneys in license revocation proceedings in the State of New York are entitled to have, as a matter of Due Process and Equal Protection of Law guaranteed by the 14^th Amendment to the U.S. Constitution, the same host of procedural and substantive rights that all other criminal defendants in the State of New York enjoy.

 

 

 

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[1] United States v. Halper, 490 US 435 (1989).  We have recognized in other contexts that punishment serves the twin aims of retribution and deterrence.  See, e. g., Kennedy v. Mendoza-Martinez, 372 U. S. 144, 168 (1963) (these are the "traditional aims of punishment"). Furthermore, "[r]etribution and deterrence are not legitimate nonpunitive governmental objectives."  Bell v. Wolfish, 441 U. S. 520, 539, n. 20 (1979). From these premises, it follows that a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term”.

[2] New York Judiciary Law §90(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.”)

[3] Kennedy v. Mendoza-Martinez, 372 US 144 (1963).

[4] New York State Judiciary Law § 90(2)(b): “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: … b. The giving to another of an opinion as to the law or its application, or of any advice in relation thereto”.

[5] See e.g. Matter of Brandes, 2015 NY Slip Op 81096[U] (2d Dept 2015), aff’d, 28 NY3d 1041 (2016) (an attorney whose law license was revoked for 7 years was denied reinstatement of his license because during the period when his license was revoked he worked as a paralegal – which does not require in New York a law license or any formal education);  see also Matter of Castillo, 2017 NY Slip Op 00531 (3rd Dept., January 26, 2017) (Even though the court did not publish the list of prohibited activities in the Matter of Castillo, the motion of attorney Castillo for permission to engage in activities enumerated in his motion was denied in full, and the author obtained from the court a copy of Gaspar Castillo’s motion, with the following activities listed (and prohibited) by the court as “practice of law” – for a suspended attorney, but not for any other person without a law license or law degree or any formal education:  

 

organizing and compiling legal documents;	File documents	Review insurance company documents for compliance with underwriting and coverage requirements
organizing and putting together trial/hearing notebooks	Prepare and sign affidavits of filing (service)
organizing and putting together trial/hearing notebooks	Serve documents and prepare and sign affidavits	Review insurance claims for underwriting and coverage requirements
Fill out/fill in legal documents	Review CDs of police interrogations and make notes of times and words spoken as directed	Process insurance company claim documents
Serve documents and prepare and sign affidavits	Proofread and edit legal documents	Perform investigative duties or work in an investigative capacity
Compile and organize relevant case law and statutes	Proofread and edit contracts	Prepare and write reports
Draft omnibus motions and other pleadings for review	Summarize testimony in hearing or trial transcripts	Review immigration documents
Draft briefs on legal issues as directed	Draft deed, mortgage, satisfaction, and other real estate documents for review	Prepare immigration documents including petition for legal residency, status, naturalization, applications for work authorization or other legal status in the United States
Compile and put together records on appeal	Prepare statements of sale and other closing documents

 

[6] See Jewish Virtual Library, Banishment Banishment (jewishvirtuallibrary.org) (covering a lot of examples of banishment from a large number of lay and religious medieval sources).

[7] See e.g. Matter of Friedberg, 2021 NY Slip Op 02109, 194 AD3d 126 (1^st Dept., April 6, 2021).

[8] 22 NYCRR 1240.8(b)(2), emphasis added.

[9] See e.g. Matter of Walker, 2020 NY Slip Op 00835, 181 AD3d 62 (1^st Dept., 2020) (“The evidence before the Referee clearly established the seriousness of respondent's assault on an intimate partner. Even when taking into consideration the mitigating circumstances, a period of suspension for such an assault is warranted in order to maintain the honor and integrity of the profession and deter others from committing similar misconduct (22 NYCRR 1240.8 [b] [2])”.

[10] See New York Judiciary Law §90(4)(a);  Matter of Yu, 2016 NY Slip Op 07103, 145 AD3d 43, (1^st Dept., 2016).

[11] Matter of Walker, 2020 NY Slip Op 00835, 181 AD3d 62 (1^st Dept., 2020), Matter of Aretakis, 2008 NY Slip Op 09693, 57 AD3d 1160 (3^rd Dept., 2008).

[12] See Matter of Aretakis, 2008 NY Slip Op 09693, 57 AD3d 1160 (3^rd Dept., 2008)(A criminal defense attorney made a motion to recuse a judge in a criminal proceeding.  The judge sanctioned the attorney for “frivolous conduct”, and the attorney appealed.  The licensing court, in its capacity as the appellate court, vacated the sanctions on the only basis that the rule of frivolous conduct is only used in civil proceedings.  Additionally, the court remanded the case back to the same judge with an instruction how to sanction the attorney so that the appeal would be affirmed.  The court did so, imposed a criminal sanction for contempt of court, the licensing court, in its capacity as the appellate court, affirmed (as it promised before), and then summarily revoked the attorney’s license based on that criminal contempt conviction.  The case shows that the licensing/appellate court equated a civil sanction with a criminal conviction, considering the difference a matter of mere formality).