Muldoon, Getz & Reston

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Attorney’s Compliance with Suspension Requirements

Gary Muldoon
Muldoon & Getz
Rochester, NY
(585) 262-5130

 

 

An attorney may be suspended from the practice of law by order of the Appellate Division, or by operation of law. When suspended, the attorney should take a number of steps, and avoid taking certain others.


Rules are contained at 22 NYCRR § 603.13 (First Dept), § 691.10 (Second Dept), § 806.9 (Third Dept), and § 1022.27 (Fourth Dept). The rules of the four departments diverge in some ways, e.g., as to notification to clients involved and those not involved in litigation, compliance dates, and other matters.


The rules apply not only to suspension from the practice of law, but also to disbarment and resignation.


The disciplined attorney must comply with the provisions of the Judiciary Law, specifically §§ 478, 479, 484 and 486.


Notice to client and opposing counsel

Upon being suspended, the attorney must promptly notify each client as well as the attorney for each party in a pending matter. Notification must be by registered or certified mail. The notice must state that the attorney is unable to act as counsel due to suspension (or, where applicable, disbarment or removal from the roll of attorneys). The notice must advise a client to obtain new counsel. The notice to counsel for a party in a pending action shall include the name and addressed of the suspended attorney’s client. 22 NYCRR § 1022.27(b).


Where a client does not obtain new counsel, the disciplined attorney shall move for permission to withdraw. § 1022.27(c).


Filing affidavit, retaining records

After the suspension order, the attorney must file an affidavit showing a current mailing address for the attorney and that the attorney has complied with the order and the rules. § 1022.27(d). The attorney must also keep and maintain records of compliance with this section. § 1022.27(f).


An attorney’s suspension results in a stay of court proceedings against that attorney’s client, without leave of court, for 30 days. CPLR 321(2)(c). See Livore v Malik, 305 AD2d 641, 760 NYS2d 225 (2d Dept 2005) (vacatur of dismissal where attorney suspended); McGregor v McGregor, 212 AD2d 955, 622 NYS2d 995 (3d Dept 1995) (vacatur of judgment where attorney disbarred).


The rules of the Appellate Divisions differ as to when the suspension is effective. In the Fourth Department, the suspension is immediately effective. An order in the First, Second or Third Department may permit the disciplined attorney a time period to wind up and complete pending matters, but the attorney may not accept any retainer or engage any new case. §§ 603.13(e), 691.10(e), 806.9(e).


After the effective date of disciplinary action, the use of the attorney’s name in a partnership or professional corporation shall be discontinued. § 806.9(e). Signs identifying the person as an attorney, both for the office as well as in the lobby of the office building, should be removed. See Matter of Rudin, 296 AD2d 118, 743 NYS2d 342 (4th Dept 2002). Letterhead and envelopes identifying the person as an attorney should be discontinued. Matter of Abbott, 175 AD2d 396, 572 NYS2d 467 (3d Dept 1991). The attorney trust account should be discontinued as well. Matter of Rudin, 296 AD2d 118, 743 NYS2d 342 (4th Dept 2002).


Compensation

The disciplined attorney may not share in any fee for legal services rendered by another attorney after disciplinary action. The disciplined attorney may, however, be compensated in quantum meruit for services rendered before the effective date of the disciplinary action. § 1022.27(e).


Unlawful practice of law, Contempt

An attorney who practices law during the disciplinary period is engaging in a criminal act -- unlawful practice of law. Judiciary Law § 486; Matter of Gill, 3 AD3d 109, 770 NYS2d 71 (1st Dept 2004). Such conduct may result in greater discipline (e.g., disbarment or delay of reinstatement after the suspension period, Matter of Bennett, 301 AD2d 176, 754 NYS2d 789 (4th Dept 2002); Matter of Przybyla, 4 AD3d 8, 769 NYS2d 815 (4th Dept 2003), as well as being held in contempt. Matter of Cary, 7 AD3d 24, 779 NYS2d 879 (4th Dept 2004); Matter of Rudin, 296 AD2d 118, 743 NYS2d 342 (4th Dept 2002).


Reinstatement

Conformity with these rules is important should the attorney seek reinstatement. At that time the attorney must establish compliance. § 1022.28.


© 2008 by Gary Muldoon