Why
attorney license revocation proceedings in New York are criminal proceedings
Tatiana Neroni,
Juris Doctor
October 19, 2021 (C)
List of
references/authorities
The goal of
retribution reflected in New York State statute
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 (3rd Dept., 2008).............................................................. 5
Matter of
Friedberg, 2021 NY Slip Op 02109, 194 AD3d 126 (1st Dept.,
April 6, 2021)................................................ 4
Matter of Walker, 2020 NY Slip Op
00835, 181 AD3d 62 (1st Dept., 2020) 5
Matter of Yu, 2016 NY Slip Op
07103, 145 AD3d 43, (1st 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 1st
factor of the Kennedy list above, as well as the 5th
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 2nd
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 14th 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.
[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:
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[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 (1st 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 (1st 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, (1st
Dept., 2016).
[11] Matter of Walker, 2020 NY Slip Op 00835, 181 AD3d
62 (1st Dept., 2020), Matter of Aretakis, 2008
NY Slip Op 09693, 57 AD3d 1160 (3rd Dept., 2008).
[12] See Matter of Aretakis, 2008 NY Slip Op 09693, 57 AD3d
1160 (3rd 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).
