Disciplinary Action for Nonpayment of Child Support
Muldoon & Getz
Attorney discipline usually results from work-related conduct. Private conduct, though, may also come within the purview of the Grievance Committee. One area of private conduct specifically provided for by statute is failure to pay child support.
Both the Domestic Relations Law and Family Court Act permit the suspension of a professional’s license where the obligor is in arrears by an amount equal to four months’ support. The court may order the appropriate board to suspend the obligor’s professional license. Family Court Act § 458-b(a); DRL § 244-c(a).
Judiciary Law § 90(2-a) addresses the legal profession, referencing the above-noted sections of the Family Court Act and Domestic Relations Law.
Upon the Appellate Division receiving a court order for nonpayment of child support or combined child and spousal support, notice is to be sent to the attorney and a hearing to be held. The hearing is “solely for the purpose” to determine whether “full payment” of all arrears has been made. If that language is not clear enough, the statute continues: “The only issue to be determined as a result of the hearing is whether the arrears have been paid. No evidence with respect to the appropriateness of the court order or ability of the respondent party in arrears to comply with such order shall be received or considered by the disciplinary committee.”
In a disciplinary proceeding, the committee refused to hear evidence concerning the attorney’s ability to schedule payment of his arrears and also denied him more time to satisfy the debt. Matter of Rosoff, 225 AD2d 197, 650 NYS2d 149 (1st Dept 1996). See also, Matter of Updegraff, 242 AD2d 119, 673 NYS2d 704 (2d Dept 1998).
Responding to process
Subd. 2-a of Judiciary Law § 90 also addresses an attorney’s failure to comply with process relating to a paternity or child support proceeding. The attorney is to be notified by the Appellate Division that the license to practice law shall be suspended within 60 days. Judiciary Law § 90(2-a) (b), (e); see also, Family Court Act § 548-b.
The license to practice law shall be suspended if the attorney fails to present proof of payment. The suspension shall not be lifted unless the original court or the support collection unit notifies the Appellate Division that full payment of all arrears has been paid. Judiciary Law § 90(2-a)(d).
Misconduct relating to the attorney’s own family law litigation may result in discipline as well. See Matter of Hawthorne, 309 AD2d 285, 765 NYS2d 607 (1st Dept 2003) (censure); Matter of Shapiro, 235 AD2d 135, 664 NYS2d 59 (2d Dept 1997) (five year suspension).
© 2008 by Gary Muldoon