Muldoon, Getz & Reston

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Attorney Facing Discipline May Resign from Bar
Gary Muldoon
Muldoon & Getz
Rochester, NY
(585) 262-5130
www.muldoongetz.com


 

The rules for resigning from the practice of law are contained at 22 NYCRR § 603.11 (First Department), § 691.9 (Second Department), § 806.8 (Third Department), and § 1022.26 (Fourth Department).


Pending disciplinary proceeding

The procedure in the Fourth Department is similar to that of other departments.


An attorney who requests to resign during the pendency of a disciplinary proceeding must submit an affidavit or affirmation with proof of service on the chief attorney. The document sets forth the nature of the charges or allegations and shows that the resignation is voluntarily rendered without duress and with full awareness of the consequences. The person resigning admits the charges or allegations; the person has no defense to the charges or allegations of misconduct; and where the misappropriate or misapplication is involved, the person consents to entry of an order of restitution. § 1022.26(a).


An appendix to the Fourth Department rules contain a form affidavit to be submitted when resigning.


Other departments

The rules of the other Appellate Divisions require an affidavit acknowledging the pendency of the disciplinary proceeding, and that the attorney cannot successfully defend against the charges.


In the First Department, upon receipt of the resignation affidavit, the disciplinary committee recommends to the court whether to accept it with any terms and conditions imposed, or whether to reject the resignation. § 603.11(b). If the First Department rejects the resignation, it may direct that disciplinary proceedings go forward. § 603.11(c).


In the Second Department, upon receipt of the affidavit by the disciplinary committee, it is filed with the Appellate Division, which may enter an order either disbarring the attorney or striking the attorney’s name. § 691.9(b).


In the Third Department, if the court accepts the affidavit of resignation, it enters an order of disbarment. § 806.8.


Caselaw

In a Second Department case, the disciplinary committee recommended that a resignation be accepted as being in the best interest of the public and as the most expeditious way to conclude the matter in order to save the court’s time and expense while protecting the public. Matter of Leslie, 20 AD3d 117, 796 NYS2d 374 (2d Dept 2005).


Where an attorney attempted to resign, it could not be accepted, as he was automatically disbarred upon being convicted of a felony. Matter of Jacobi, 293 AD2d 77, 742 NYS2d 211 (1st Dept 2002).


An attorney who resigns from the bar due to disciplinary reasons is barred from reapplying for readmission for seven years. Matter of Benevenia, 22 AD3d 26, 799 NYS2d 581 (2d Dept 2005).


Restitution

An order permitting an attorney to resign may require restitution. Judiciary Law § 90(6-a)(d).


Non-disciplinary reasons

When no disciplinary proceeding is pending, an attorney may voluntarily resign by filing an affidavit or affirmation as set forth in the Fourth Department’s rules. § 1022.26(b). Reasons for resigning include where the attorney is moving from New York State and does not intend to practice law in New York.


With a resignation while under investigation in the Fourth Department, the order notes that the attorney’s name is “stricken” from the roll of attorneys; whereas with a voluntary resignation, the name is “removed.”


Conduct of resigned attorney

Once the attorney has resigned, the attorney shall notify each client in a pending matter. § 1028.27(b). Where there is a pending action, the attorney must move for permission to withdraw. § 1022.27(c).


Thirty days after resignation, the attorney is to file an affidavit of compliance with the Appellate Division showing compliance. § 1022.27(d). The attorney is also required to keep records of compliance. § 1022.27(f).


An attorney who has resigned may not accept compensation for services performed during the period of removal, but may be compensated on a quantum meruit basis for services rendered and disbursements incurred before the date of removal. § 1022.27(e); see also, § 603.13(b) (First Department); § 691.10(b) (Second Department); § 806.9 (Third Department).


Attorney permitted to resign where he signed an affidavit with appropriate admissions, and repaid clients all clients except one to whom he owed $4,200, voluntarily suspended his law practice and transferred all of his open cases to other counsel. As to the one client still owed money, the attorney was directed to make reimbursement to the Lawyer’s fund or restitution to the client. Matter of Lieberman, 23 AD3d 91, 802 NYS2d 121 (1st Dept 2005).


Reinstatement

The Fourth Department permits an attorney who has voluntarily resigned for nondisciplinary reasons to be readmitted to the bar. The application must show changed circumstances as well as admission and disciplinary status in other jurisdictions and show payment of the attorney registration fees due when the attorney resigned and akees that accrued while resigned. If the person has been not an attorney for more than one year, the person may be required to pass the Multistate Professional Responsibility Examination (MPRE) or the full bar exam, and must appear personally before the Appellate Division. 1022.28(d).


© 2008 by Gary Muldoon