§ 90 — Admission to and removal from practice by appellate division; character committees

New York § 90

• Jurisdiction: New York
• Law JUD: Judiciary
• Art. 4: Appellate Division

Text

§ 90. Admission to and removal from practice by appellate division;\ncharacter committees. 1. a. Upon the state board of law examiners\ncertifying that a person has passed the required examination, or that\nthe examination has been dispensed with, the appellate division of the\nsupreme court in the department to which such person shall have been\ncertified by the state board of law examiners, if it shall be satisfied\nthat such person possesses the character and general fitness requisite\nfor an attorney and counsellor-at-law and has satisfied the requirements\nof section 3-503 of the general obligations law, shall admit him to\npractice as such attorney and counsellor-at-law in all the courts of\nthis state, provided that he has in all respects complied with the rules\nof the court of appeals and the rules of the appellate divisions\nrelating to the admission of attorneys.\n b. Upon the application, pursuant to the rules of the court of\nappeals, of any person who has been admitted to practice law in another\nstate or territory or the District of Columbia of the United States or\nin a foreign country, to be admitted to practice as an attorney and\ncounsellor-at-law in the courts of this state without taking the regular\nbar examination, the appellate division of the supreme court, if it\nshall be satisfied that such person is currently admitted to the bar in\nsuch other jurisdiction or jurisdictions, that at least one such\njurisdiction in which he is so admitted would similarly admit an\nattorney or counsellor-at-law admitted to practice in New York state to\nits bar without examination and that such person possesses the character\nand general fitness requisite for an attorney and counsellor-at-law and\nhas satisfied the requirements of section 3-503 of the general\nobligations law, shall admit him to practice as such attorney and\ncounsellor-at-law in all the courts of this state, provided, that he has\nin all respects complied with the rules of the court of appeals and the\nrules of the appellate divisions relating to the admission of attorneys.\nSuch application, which shall conform to the requirements of section\n3-503 of the general obligations law, shall be submitted to the\nappellate division of the supreme court in the department specified in\nthe rules of the court of appeals.\n c. The members of the committee appointed by the appellate division in\neach department to investigate the character and fitness of applicants\nfor admission to the bar, shall be entitled to their necessary\ntraveling, hotel and other expenses, incurred in the performance of\ntheir duties, payable by the state out of moneys appropriated therefor,\nupon certificate of the presiding justice of the appellate division by\nwhich such committee is appointed.\n d. The committee on character and fitness appointed by the appellate\ndivision of the supreme court in the first judicial department and the\ncommittee on character and fitness appointed by the appellate division\nof the supreme court of the second judicial department, may each, with\nthe written consent of the justices of each of such appellate divisions\nor a majority of such justices, acting for their respective appellate\ndivisions, from time to time, appoint and remove a secretary,\nstenographers and assistants, and procure a suitable office for each\ncommittee, properly furnished and equipped and all books, stationery,\nblanks, postal cards, expressage and postage stamps as shall be required\nfor the proper performance of the duties of each such committee.\n e. The salaries of such secretary, stenographers and assistants shall\nbe fixed for each department by the justices of the appellate division\nin each department or a majority of them in each department.\n f. The salaries of such secretary, stenographers and assistants and\nthe necessary expenses under the terms of this act in the first judicial\ndepartment, shall, in the said first judicial department, be paid by the\ncomptroller of the city of New York.\n g. The salaries of such secretary, stenographers and assistants and\nthe necessary expenses under the terms of this act in the second\njudicial department shall be certified by the presiding justice of such\ndepartment to the state comptroller who shall audit the same. The state\ndepartment of taxation and finance shall pay such salaries and expenses\nand shall apportion the same among the counties comprising the second\njudicial department. Such counties shall reimburse the state for such\ncompensation. The time and method of such apportionment and the time and\nmethod of such reimbursement shall be as specified in section\nseventy-four of this chapter.\n 2. The supreme court shall have power and control over attorneys and\ncounsellors-at-law and all persons practicing or assuming to practice\nlaw, and the appellate division of the supreme court in each department\nis authorized to censure, suspend from practice or remove from office\nany attorney and counsellor-at-law admitted to practice who is guilty of\nprofessional misconduct, malpractice, fraud, deceit, crime or\nmisdemeanor, or any conduct prejudicial to the administration of\njustice; and the appellate division of the supreme court is hereby\nauthorized to revoke such admission for any misrepresentation or\nsuppression of any information in connection with the application for\nadmission to practice.\n It shall be the duty of the appellate division to insert in each order\nof suspension or removal hereafter rendered a provision which shall\ncommand the attorney and counsellor-at-law thereafter to desist and\nrefrain from the practice of law in any form, either as principal or as\nagent, clerk or employee of another. In addition it shall forbid the\nperformance of any of the following acts, to wit:\n a. The appearance as an attorney or counsellor-at-law before any\ncourt, judge, justice, board, commission or other public authority.\n b. The giving to another of an opinion as to the law or its\napplication, or of any advice in relation thereto.\n In case of suspension only, the order may limit the command to the\nperiod of time within which such suspension shall continue, and if\njustice so requires may further limit the scope thereof.\n If an attorney and counsellor-at-law has been heretofore removed from\noffice, the appellate division shall upon application of any attorney\nand counsellor-at-law, or of any incorporated bar association, and upon\nsuch notice to the respondent as may be required, amend the order of\nremoval by adding thereto as a part thereof, provisions similar to those\nrequired to be inserted in orders hereafter made.\n If a certified copy of such order or of such amended order, be served\nupon the attorney and counsellor-at-law suspended or removed from\noffice, a violation thereof may be punished as a contempt of court.\n 2-a. a. The provisions of this subdivision shall apply in all cases of\nan attorney licensed, registered or admitted to practice in this state\nwho has failed after receiving appropriate notice, to comply with a\nsummons, subpoena or warrant relating to a paternity or child support\nproceeding involving him or her personally, or who is in arrears in\npayment of child support or combined child and spousal support which\nmatter shall be referred to the appropriate appellate division by a\ncourt pursuant to the requirements of section two hundred forty-four-c\nof the domestic relations law or pursuant to section four hundred\nfifty-eight-b or five hundred forty-eight-b of the family court act.\n b. Upon receipt of an order from the court based on arrears in payment\nof child support or combined child and spousal support pursuant to one\nof the foregoing provisions of law, the appropriate appellate division\nwithin thirty days of receipt of such order, if it finds such person to\nbe so licensed, registered or admitted, shall provide notice to such\nattorney of, and initiate, a hearing which shall be held by it at least\ntwenty days and no more than thirty days after the sending of such\nnotice to the attorney. The hearing shall be held solely for the purpose\nof determining whether there exists as of the date of the hearing proof\nthat full payment of all arrears of support established by the order of\nthe court to be due from the licensed, registered or admitted attorney\nhave been paid. Proof of such payment shall be a certified check showing\nfull payment of established arrears or a notice issued by the court or\nthe support collection unit where the order is payable to the support\ncollection unit designated by the appropriate social services district.\nSuch notice shall state that full payment of all arrears of support\nestablished by the order of the court to be due have been paid. The\nlicensed attorney shall be given full opportunity to present such proof\nof payment at the hearing in person or by counsel. The only issue to be\ndetermined as a result of the hearing is whether the arrears have been\npaid. No evidence with respect to the appropriateness of the court order\nor ability of the respondent party in arrears to comply with such order\nshall be received or considered by the disciplinary committee.\n c. Upon receipt of an order from the court based on failure to comply\nwith a summons, subpoena, or warrant relating to a paternity or child\nsupport proceeding, the appropriate appellate division within thirty\ndays of receipt of such order, if it finds such person to be so\nlicensed, registered or admitted, shall provide notice to such attorney\nthat his or her license shall be suspended within sixty days of such\nnotice to the attorney unless the conditions in paragraph e of this\nsection are met.\n d. Notwithstanding any inconsistent provision of this section or of\nany other provision of law to the contrary, the license to practice law\nin this state of an attorney admitted to practice shall be suspended by\nthe appellate division if, at the hearing provided for by paragraph b of\nthis subdivision, the licensed attorney fails to present proof of\npayments as required by such subdivision. Such suspension shall not be\nlifted unless the original court or the support collection unit, where\nthe court order is payable to the support collection unit designated by\nthe appropriate social services district, issues notice to the appellate\ndivision that full payment of all arrears of support established by the\norder of the original court to be due have been paid.\n e. Notwithstanding any inconsistent provision of this section or of\nany other provision of law to the contrary, the license of an attorney\nadmitted to practice law in this state shall be suspended by the\nappellate division, in accordance with paragraph c of this subdivision\nunless the court terminates its order to commence suspension\nproceedings. Such suspension shall not be lifted unless the court issues\nan order to the appellate division terminating its order to commence\nsuspension proceedings.\n f. The appellate division shall inform the original court of all\nactions taken hereunder.\n g. This subdivision two-a applies to paternity and child support\nproceedings commenced under, and support obligations paid pursuant to\nany order of child support or child and spousal support issued under\nprovisions of section two hundred thirty-six or two hundred forty of the\ndomestic relations law, or article four, five, five-A or five-B of the\nfamily court act.\n h. Notwithstanding any inconsistent provision of this section or of\nany other provision of law to the contrary, the provisions of this\nsubdivision two-a shall apply to the exclusion of any other requirements\nof this section and to the exclusion of any other requirement of law to\nthe contrary.\n 2-b. Notwithstanding any general or special law or rule or regulation\nto the contrary, no attorney licensed in this state may be removed or\notherwise subject to discipline, including reprimand, censure, monetary\nfine, or the revocation, suspension, or cancellation of the attorney's\nlicense, for advising or representing a client or prospective client\nrelated to reproductive health care or gender-affirming care, as defined\nby section 570.17 of the criminal procedure law, if the sole reason for\nsuch removal or discipline is that (i) the client offered, provided,\nfacilitated, or received reproductive health care or gender-affirming\ncare that is unlawful in another state; (ii) another state's laws create\nactual or potential liability for the reproductive health care or\ngender-affirming care offered, provided, facilitated, or received by the\nclient; or (iii) the attorney is subject to actual or potential\nliability, removal, or discipline in another jurisdiction based on the\nreproductive health care or gender-affirming care offered, provided,\nfacilitated, or received by their client, so long as the attorney's\nconduct complies with the laws of this state and meets the standards set\nforth in the Rules of Professional Conduct promulgated by the judicial\ndepartments of the appellate division of the New York state supreme\ncourt.\n 3. The suspension or removal of an attorney or counsellor-at-law, by\nthe appellate division of the supreme court, operates as a suspension or\nremoval in every court of the state.\n 4. a. Any person being an attorney and counsellor-at-law who shall be\nconvicted of a felony as defined in paragraph e of this subdivision,\nshall upon such conviction, cease to be an attorney and\ncounsellor-at-law, or to be competent to practice law as such.\n b. Whenever any attorney and counsellor-at-law shall be convicted of a\nfelony as defined in paragraph e of this subdivision, there may be\npresented to the appellate division of the supreme court a certified or\nexemplified copy of the judgment of such conviction, and thereupon the\nname of the person so convicted shall, by order of the court, be struck\nfrom the roll of attorneys.\n c. Whenever an attorney shall be convicted of a crime in a court of\nthe United States or of any state, territory or district, including this\nstate, whether by a plea of guilty or nolo contendere or from a verdict\nafter trial or otherwise, the attorney shall file, within thirty days\nthereafter, with the appellate division of the supreme court, the record\nof such conviction.\n The failure of the attorney to so file shall be deemed professional\nmisconduct provided, however, that the appellate division may upon\napplication of the attorney, grant an extension upon good cause shown.\n d. For purposes of this subdivision, the term serious crime shall mean\nany criminal offense denominated a felony under the laws of any state,\ndistrict or territory or of the United States which does not constitute\na felony under the laws of this state, and any other crime a necessary\nelement of which, as determined by statutory or common law definition of\nsuch crime, includes interference with the administration of justice,\nfalse swearing, misrepresentation, fraud, willful failure to file income\ntax returns, deceit, bribery, extortion, misappropriation, theft, or an\nattempt or conspiracy or solicitation of another to commit a serious\ncrime.\n e. For purposes of this subdivision, the term felony shall mean any\ncriminal offense classified as a felony under the laws of this state or\nany criminal offense committed in any other state, district, or\nterritory of the United States and classified as a felony therein which\nif committed within this state, would constitute a felony in this state.\n f. Any attorney and counsellor-at-law convicted of a serious crime, as\ndefined in paragraph d of this subdivision, whether by plea of guilty or\nnolo contendere or from a verdict after trial or otherwise, shall be\nsuspended upon the receipt by the appellate division of the supreme\ncourt of the record of such conviction until a final order is made\npursuant to paragraph g of this subdivision.\n Upon good cause shown the appellate division of the supreme court may,\nupon application of the attorney or on its own motion, set aside such\nsuspension when it appears consistent with the maintenance of the\nintegrity and honor of the profession, the protection of the public and\nthe interest of justice.\n g. Upon a judgment of conviction against an attorney becoming final\nthe appellate division of the supreme court shall order the attorney to\nshow cause why a final order of suspension, censure or removal from\noffice should not be made.\n h. If the attorney requests a hearing, the appellate division of the\nsupreme court shall refer the proceeding to a referee, justice or judge\nappointed by the appellate division for hearing, report and\nrecommendation.\n After said hearing, the appellate division may impose such discipline\nas it deems proper under the facts and circumstances.\n 5. a. If such removal or debarment was based upon conviction for a\nserious crime or upon a felony conviction as defined in subdivision four\nof this section, and such felony conviction was subsequently reversed or\npardoned by the president of the United States, or governor of this or\nanother state of the United States, the appellate division shall have\npower to vacate or modify such order or debarment, provided, however,\nthat if such attorney or counsellor-at-law has been removed from\npractice in another jurisdiction, a pardon in said jurisdiction shall\nnot be a basis for application for re-admission in this jurisdiction\nunless he shall have been readmitted in the jurisdiction where pardoned.\n b. If such removal or debarment was based upon conviction for a felony\nas defined in subdivision four of this section, the appellate division\nshall have power to vacate or modify such order or debarment after a\nperiod of seven years provided that such person has not been convicted\nof a crime during such seven-year period.\n c. An attorney and counsellor-at-law who has been convicted of a\nfelony without the state and whose name has been struck from the roll of\nattorneys prior to July thirteenth, nineteen hundred seventy-nine by\nvirtue of the provisions of subdivision four of this section may, if he\nalleges that such felony committed without the state would not\nconstitute a felony if committed within the state, petition the\nappellate division to vacate or modify such debarment. If the appellate\ndivision finds that the felony of which the attorney and\ncounsellor-at-law has been convicted without the state would not\nconstitute a felony if committed within the state, it shall grant a\nhearing and may retroactively vacate or modify such debarment and impose\nsuch discipline as it deems just and proper under the facts and\ncircumstances.\n The attorney and counsellor-at-law shall petition for reinstatement by\nfiling in the appellate division a copy of the order of removal together\nwith a request for a hearing pursuant to the provisions of this\nparagraph. Upon such application, the order of removal shall be deemed\nan order of suspension for the purposes of a proceeding pursuant to this\nparagraph.\n 6. Before an attorney or counsellor-at-law is suspended or removed as\nprescribed in this section, a copy of the charges against him must be\ndelivered to him personally within or without the state or, in case it\nis established to the satisfaction of the presiding justice of the\nappellate division of the supreme court to which the charges have been\npresented, that he cannot with due diligence be served personally, the\nsame may be served upon him by mail, publication or otherwise as the\nsaid presiding justice may direct, and he must be allowed an opportunity\nof being heard in his defense. In all cases where the charges are served\nin any manner other than personally, and the attorney and\ncounsellor-at-law so served does not appear, an application may be made\nby such attorney or in his behalf to the presiding justice of the\nappellate division of the supreme court to whom the charges were\npresented at any time within one year after the rendition of the\njudgment, or final order of suspension or removal, and upon good cause\nshown and upon such terms as may be deemed just by such presiding\njustice, such attorney and counsellor-at-law must be allowed to defend\nhimself against such charges.\n The justices of the appellate division in any judicial department, or\na majority of them, may make an order directing the expenses of any\ndisciplinary proceedings, and the necessary costs and disbursements of\nthe petitioner in prosecuting such charges, including the expense of any\npreliminary investigation in relation to professional conduct of an\nattorney and counsellor-at-law, to be paid out of funds appropriated to\nthe office of court administration for that purpose.\n 6-a. a. Where the appellate division of supreme court orders the\ncensure, suspension from practice or removal from office of an attorney\nor counsellor-at-law following disciplinary proceedings at which it\nfound, based upon a preponderance of the legally admissible evidence,\nthat such attorney or counsellor-at-law wilfully misappropriated or\nmisapplied money or property in the practice of law, its order may\nrequire him or her to make monetary restitution in accordance with this\nsubdivision. Its order also may require that he or she reimburse the\nlawyers' fund for client protection of the state of New York for awards\nmade to the person whose money or property was wilfully misappropriated\nor misapplied.\n b. Monetary restitution, as authorized hereunder, shall be made to the\nperson whose money or property was wilfully misappropriated or\nmisapplied and shall be for the amount or value of such money or\nproperty, as found in the disciplinary proceedings. In the event that\nsuch person dies prior to completion of such restitution, any amount\nremaining to be paid shall be paid to the estate of the deceased.\n c. Any payment made as restitution pursuant to this subdivision shall\nnot limit, preclude or impair any liability for damages in any civil\naction or proceeding for an amount in excess of such payment; nor shall\nany order of the appellate division made hereunder deprive a criminal\ncourt of any authority pursuant to article sixty of the penal law.\n d. An order issued pursuant to this subdivision may be entered as a\ncivil judgment. Such judgment shall be enforceable as a money judgment\nin any court of competent jurisdiction by any person to whom payments\nare due thereunder, or by the lawyers' fund for client protection where\nit has been subrogated to the rights of such person.\n e. Where an attorney or counsellor-at-law is permitted to resign from\noffice, the appellate division may, if appropriate, issue an order as\nprovided herein requiring him or her to make payments specified by this\nsubdivision.\n f. Notwithstanding any other provision of this subdivision, no order\nmay be issued hereunder unless the person required to make payments\nunder such order first is given an opportunity to be heard in opposition\nthereto.\n 7. In addition to the duties prescribed by section seven hundred of\nthe county law, it shall be the duty of any district attorney within a\ndepartment, when so designated by the justices of the appellate division\nof the supreme court in such department, or a majority of them, to\nprosecute all proceedings for the removal or suspension of attorneys and\ncounsellors-at-law or the said justices, or a majority of them may\nappoint any attorney and counsellor-at-law to conduct a preliminary\ninvestigation and to prosecute any disciplinary proceedings and, during\nor upon the termination of the investigation or proceedings, may fix the\ncompensation to be paid to such attorney and counsellor-at-law for the\nservices rendered, which compensation shall be a charge against the\ncounty specified in his certificate and shall be paid thereon.\n 8. Any petitioner or respondent in a disciplinary proceeding against\nan attorney or counsellor-at-law under this section, including a bar\nassociation or any other corporation or association, shall have the\nright to appeal to the court of appeals from a final order of any\nappellate division in such proceeding upon questions of law involved\ntherein, subject to the limitations prescribed by section three of\narticle six of the constitution of this state.\n 9. No objection shall be taken to the appointment of any member of the\nbar to act as referee or judge in a disciplinary proceeding under this\nsection on the ground that he is a member of a bar association or other\ncorporation or association which is the petitioner therein.\n 10. Any statute or rule to the contrary notwithstanding, all papers,\nrecords and documents upon the application or examination of any person\nfor admission as an attorney and counsellor at law and upon any\ncomplaint, inquiry, investigation or proceeding relating to the conduct\nor discipline of an attorney or attorneys, shall be sealed and be deemed\nprivate and confidential. However, upon good cause being shown, the\njustices of the appellate division having jurisdiction are empowered, in\ntheir discretion, by written order, to permit to be divulged all or any\npart of such papers, records and documents. In the discretion of the\npresiding or acting presiding justice of said appellate division, such\norder may be made either without notice to the persons or attorneys to\nbe affected thereby or upon such notice to them as he may direct. In\nfurtherance of the purpose of this subdivision, said justices are also\nempowered, in their discretion, from time to time to make such rules as\nthey may deem necessary. Without regard to the foregoing, in the event\nthat charges are sustained by the justices of the appellate division\nhaving jurisdiction in any complaint, investigation or proceeding\nrelating to the conduct or discipline of any attorney, the records and\ndocuments in relation thereto shall be deemed public records.\n