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Interrelationship of Judicial and Attorney Discipline
by Gary Muldoon

Two quite separate disciplinary processes exist for attorneys and for judges. For attorneys, disciplinary authority rests with the Appellate Divisions, each of which has a disciplinary committee.

The disciplinary authority for judges is the State Commission on Judicial Conduct ("State Commission"). It has no authority to discipline attorneys and is not empowered to formally charge a violation of the Code of Professional Responsibility. Matter of Mazzei, 81 NY2d 568, 601 NYS2d 90, 618 NE2d 123 (1993). The State Commission is empowered to refer allegations and evidence to a district attorney office, an Appellate Division or other body for possible further action. Judiciary Law § 44(8)(b); see also, Beck v Committee on Professional Standards, 61 AD2d 1117, 403 NYS2d 564 (3d Dept 1978).

Despite the separate disciplinary bodies, on occasion their activities overlap.

An attorney may be disciplined for the same conduct that results in disciplinary action as a judge. See Matter of Tamsen, 100 NY2d 19, 759 NYS2d 435 (2003). In fact, collateral estoppel may apply from the findings of one body to another. Matter of Collazzo, 299 AD2d 96, 750 NYS2d 263 (1st Dept 2002); Matter of Intemann, 165 AD2d 974, 562 NYS2d 241 (3d Dept 1990); Matter of Embser, 90 NY2d 711, 665 NYS2d 382 (1997); Matter of Tamsen, supra.

The type of discipline imposed may vary, of course, and mitigating circumstances may be considered differently with each body. In fact, the punishment imposed by one body and its effect on the person may be considered in mitigation. See Matter of Collazzo, 299 AD2d 96, 750 NYS2d 263 (1st Dept 2002).

In one recent case, judicial misconduct and a judicial investigation directly affected a disciplinary proceeding. An attorney who had also been an acting village judge had been suspended from the practice of law for reasons unrelated to judicial office. In proceedings before the State Commission, a stipulation was entered in which the acting judge had agreed: to not seek a judicial position again; not defend against complaints that she had failed to comply with judicial reporting; and that she failed to cooperate with its investigation. The judge also waived confidentiality with respect to the stipulation.

Upon application for readmission to practice, the Third Department delayed the application to terminate the suspension for one year. Matter of Killian, 51 AD3d 1363, 859 NYS2d 497 (3d Dept 2008).

The determination or basis for action by the State Commission against a judge has been noted in other attorney disciplinary proceedings. See Matter of Mazzei, 81 NY2d 568, 601 NYS2d 90 (1993) (judicial removal) and Matter of Mazzei, 229 AD2d 167, 653 NYS2d 651 (2d Dept 1997) (suspension for five years); see also, Matter of Cerbone, 295 AD2d 66, 742 NYS2d 110 (2d Dept 2002) (admonition from State Commission); Matter of Mogil, 250 AD2d 343, 682 NYS2d 70 (2d Dept 1998) (disbarment); Matter of Cohen, 190 AD2d 179, 598 NYS2d 797 (2d Dept 1993) (disbarment); Matter of Levine, 193 AD2d 296, 603 NYS2d 530 (2d Dept 1993) (censure). See also, Matter of Mason, 7 AD3d 117, 777 NYS2d 751 (2d Dept 2004) (attorney’s resignation based in part on misleading responses to State Commission).

Discipline can flow in the opposite direction as well. Misconduct as an attorney that resulted in censure also resulted in reciprocal censure by the State Commission. See Matter of Tamsen, 100 NY2d 19, 759 NYS2d 435 (2003); see also, Matter of Embser, 90 NY2d 711, 665 NYS2d 382 (1997) (removal from office).

© 2008 by Gary Muldoon