|Censure Is Public Discipline of Attorney
by Gary Muldoon
Muldoon & Getz
Rochester, New York
There are three types of “public” discipline that an attorney may receive: disbarment, suspension and censure, the latter being the lowest of the three public disciplines. It is a form of punishment imposed by the Appellate Division, rather than by a disciplinary or grievance committee. Judiciary Law § 90(2); see 22 NYCRR 605.5(a) (First Dept).
As discussed below, a variety of misconduct may result in censure. Mitigation is often important in the Appellate Division’s decisions.
Prior disciplineThe misconduct resulting in censure sometimes includes conduct for which an attorney has been disciplined before. Where an attorney engaged in conflict of interest, censure was imposed, the decision noting a prior letter of admonition as well as letters of caution. Matter of Rogoff, 31 AD3d 111, 818 NYS2d 366 (4th Dept 2006). Also, where an attorney failed to bill properly or maintain an IOLA account, and had been previously censured, censure was appropriate. Matter of Ohl, 31 AD3d 122, 817 NYS2d 794 (4th Dept 2006).
Not informing of misdemeanor conviction
Failure to inform the disciplinary committee of a criminal conviction within 30 days, as required by disciplinary rules itself has resulted in censure. Matter of Lambert, 296 AD2d 151, 745 NYS2d 543 (2d Dept 2002). See also, Matter of Gross, 34 AD3d 23, 824 NYS2d 825 (4th Dept 2006) (two convictions for misdemeanor DWI and failing to report his first conviction to the Appellate Division; in mitigation, alcoholism, for which attorney was in treatment, the result was conditional censure).
For failing to submit itemized bills regularly in a domestic relations matter, along with failing to submit to fee arbitration, the appropriate discipline was censure. Matter of Funda, 42 AD3d 10, 840 NYS2d 844 (4th Dept 2007).
Where an attorney who had misappropriated money had arranged to pay back even before it was discovered, censure. Matter of Ciccone, 57 AD3d 148, 866 NYS2d 894 (4th Dept 2008).
Trust account misuse
An attorney used a trust account for personal transactions and failed to use the account for client funds, with checks dishonored for insufficient funds. In mitigation, the misconduct was not related to client funds. Censure resulted. Matter of Fisher, 29 AD3d 71, 810 NYS2d 690 (4th Dept 2006).
Change of attorney
Where an attorney failed to sign a change of attorney form and complete the transfer of client files to new counsel, among other violations, censure was imposed. Matter of Strunk, 53 AD3d 60, 862 NYS2d 222 (4th Dept 2008).
Falsely notarizing of a client signatures, along with other misconduct (failing to file documents timely, misrepresenting facts in affirmation filed in court), resulted in censure, where there was no prior misconduct and attorney did not profit from his misconduct. Matter of Essien, 77 AD3d 237, 907 NYS2d 474 (1st Dept 2010).
An attorney’s act of perpetuating a client’s lie in arbitration resulted in censure, where the attorney expressed remorse, took responsibility for his actions, presented credible character and reputation testimony, and agreed that public censure was appropriate sanction. Matter of Katz, 15 AD3d 1, 789 NYS2d 477 (1st Dept 2005).