Report Recommends Changes In Attorney Discipline Process
Second Department Procedures Could Be Brought in Line With Others
By Tom Perrotta
New York Law Journal
October 12, 2004

New York's largest judicial department, the Second, is on the verge of changes in the way it disciplines lawyers that would bring it into line with the other three.

A peculiarity of the state's court system is that attorneys who commit the same misdeeds face different degrees of discipline depending on where they live.

A Brooklyn attorney who abandons a client or improperly mingles bank accounts might face a suspension six months longer than a Manhattan counterpart a subway stop away. The time before reinstatement of suspended attorneys can vary widely.

Uniquely among the states, New York gives the authority to punish attorneys to geographical departments rather than a statewide body. Attempts to unify the process have always failed, leaving attorneys in different parts of the state in the hands of character and fitness committees appointed by the departments. These committees assign disciplinary cases to referees, then recommend punishments to the department's appeals court. Each appellate department has its own rules.

Complaints about the system have been especially noticeable in the Appellate Division, Second Department, which comprises much of New York City and its major suburbs. The counties are Kings, Queens, Richmond, Nassau, Suffolk, Westchester, Dutchess, Orange, Rockland and Putnam counties - more than half the state's population.

The Second Department disciplines more attorneys than any other.

It is also the only one with a minimum suspension period, one year.

Now a committee convened by the department's presiding justice, A. Gail Prudenti, has recommended revisions in its admission and disciplining of lawyers.

Among the proposals:

• Suspensions as short as six months.

• Giving consideration to term limits for members of the committees that recommend admissions and disciplinary action.

• A speedier process for reinstating lawyers suspended for a year or less.

• A requirement that referees follow strict deadlines in issuing reports on investigations to the committees.

The recommendations were given to the department's justices this summer and made public last week.

Justice Gabriel M. Krausman of the Second Department chaired the 30-member committee, which included judges and former judges, attorneys, academics and Brooklyn District Attorney Charles J. Hynes. After a 30-day public comment period, the court's justices will vote on changes.

"The goal is to make sure that justice is done for lawyers, complainants and the public, and to make the system more evenhanded for everybody," Justice Krausman said in an interview. "We wanted to get some more uniformity."

The committee first met about 1-1/2 years ago. Its discussion of the current process and proposed changes fills nearly 30 pages. Not all the members agreed on every suggestion, but there was unanimity on allowing for reduced suspensions.

In the other departments, attorneys can face suspensions as low as three months.

"There were horror stories with respect to suspensions," Justice Krausman said, particularly when it came time to apply for reinstatement. One attorney, he said, had been suspended for one year but could not return to practice for almost four years because of the slow-moving reinstatement process.

Long Ordeal

Under current rules, Justice Krausman said, the appellate justices have to certify that an application for reinstatement contains the proper documents and then send it on to one of three geographical character and fitness committees. The committee then must convene and vote on the application. Errors in paperwork and the time it takes for committees to convene often stall the process.

Other departments allow attorneys who are suspended for less than one year to reapply by affidavit, and reinstatement is virtually automatic. Justice Krausman's panel suggested such action in the Second Department, though there was not full agreement on whether a character panel could be left out of the process entirely. A possible compromise: Require an interview by one member rather than the whole committee.

Reinstatement in the Second Department is often denied without explanation to the attorney. The committee recommended spelling out reasons for denial. It also said apply that any time spent under an interim suspension should be part of the final suspension period.

Members of the character panels currently serve life terms. The Krausman committee suggested imposing term limits or trying harder to bring fresh people to the positions. It urged greater diversity of professions for referees who provide reports to the character panels. Most are retired judges, but attorneys should also be given these jobs, the report said.

The committee recommended a time limit of 60 days for referees to file reports on allegations of misconduct to the character panels. Delays in filing reports, Justice Krausman said, leave accused attorneys in the lurch and dismay the people who have complained about them.

"We had some old-time judges who would sit on reports for a year or so," he said. "There were complaints from complainants that nothing was done for years."

Admitting Procedures

When it comes to admitting attorneys to practice, the state's four departments are more alike in their practices. But the committee recommended some changes here, too, such as instituting an admission program like the one in the First Department. There, admitted attorneys are gathered together for a brief session on ethics, civility and escrow accounts, a common minefield for solo practitioners.

Justice Krausman said there are other changes on the horizon that were not in the report but are being discussed among the judges. He declined to give specifics, but said the proposals will be ironed out this year.

In a statement, Justice Prudenti said, "I am confident that many of these recommendations will be instituted resulting in improvements to our admission and grievance procedures which will not only be fair and equitable for those involved, but which also will be worthy of the public's confidence."

Krausman Committee Report Summary and Rules of Procedure

- Tom Perrotta can be reached at tperrotta@amlaw.com.