Muldoon, Getz & Reston

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Court May Order Interim Suspension of Attorney
Gary Muldoon
Muldoon & Getz
Rochester, NY
(585) 262-5130
www.muldoongetz.com


When a disciplinary proceeding is instituted against an attorney, there is an established procedure for answering and resolving issues by the grievance committee or the Appellate Division. Certain situations, though, may require expedited action by a disciplinary body. Matter of Padilla, 67 NY2d 440, 503 NYS2d 550, 494 NE2d 1050 (1986). In each of the four judicial departments of New York State, the rules provide for interim suspension of an attorney.


Rules for interim discipline are contained at 22 NYCRR § 603.4(e) (First Dept), § 691.4(l) (Second Dept), § 806.4(f) (Third Dept), and § 1022.20(e) (Fourth Dept). See also, 6A NY Jur 2d Attorneys at Law, § 394; Annot., 80 ALR4th 136.


Basis for interim suspension

The grounds for interim suspension are: default in responding to a disciplinary petition, or a notice to appear for questioning, or a subpoena; an admission under oath of professional misconduct; or other uncontroverted evidence of misconduct. § 1022.20(e).


An additional ground for interim suspension in the First Department is failure to pay a debt to a client. § 603.4(e)(1).


An incapacitated attorney may also be suspended immediately. § 1022.23.


Criminal conviction

A criminal conviction that will result in reciprocal discipline may be the basis for interim suspension. § 691.4(l)(1) (First Dept); § 806.4(f)(1) (Third Dept); Matter of Kushner, 16 AD3d 766, 790 NYS2d 310 (3d Dept 2005).


Where an attorney is convicted of a “serious crime,” as defined in Judiciary Law § 90(4)(d), an order of interim suspension may be ordered, without further demonstration of immediate danger to the public. Matter of Agulnick, 235 AD2d 57, 663 NYS2d 214 (1st Dept 1997). In the Fourth Department, upon receipt of proof of a “serious crime,” the Appellate Division shall issue an order of interim suspension. This may be vacated for good cause shown. § 1022.21(b)(1).


Interim suspension was found inappropriate where felony charges were dismissed and the attorney was convicted of a misdemeanor only. The decision noted that the moving papers regarding the underlying facts were vague. Matter of Evans, 250 AD2d 922, 675 NYS2d 380 (3d Dept 1998).


 

Notice to attorney

The language of the rules vary as to the type of notice provided to the attorney. The Third Department provides for written notice to be given to the attorney, and that interim suspension shall commence upon service of the order granting the application. § 806.4(f)(2) (Third Dept). The First and Second Departments reference § 90(6) of the Judiciary Law. § 603.4(e)(2); § 691.4(l)(2).


Noncooperation

Failure to cooperate with the disciplinary committee is a frequent ground for interim suspension. See e.g., Matter of Howard, 226 AD2d 47, 650 NYS2d 172 (1st Dept 1996).


An attorney’s failure to produce all requested records in a disciplinary investigation into an IOLA account warranted suspension pending conclusion of further disciplinary proceedings. In re Kohn, 18 AD3d 96, 794 NYS2d 370 (1st Dept 2005). Similarly, where the attorney failed to cooperate during an investigation into charges of misconduct and misuse of escrow account, which demanded an immediate response, interim suspension was warranted until the conclusion of disciplinary proceedings. Matter of Szaro, 10 AD3d 81, 780 NYS2d 141 (1st Dept 2004). See also, § 806.4(b) (interim suspension in Third Department for attorney’s failure to respond to a disciplinary subpoena).


The persistent failure of an attorney to cooperate with the departmental disciplinary committee, even over a rather minor matter, resulted in immediate suspension from the practice of law. The attorney failed to satisfy a small claims judgment that was taken by another lawyer who made court appearances for the attorney in question. The attorney submitted documentation that appeared to have been fraudulent. Matter of Fisher, 295 AD2d 95, 742 NYS2d 296 (1st Dept 2002).


Order of interim suspension

An order of interim suspension by the First or Second Department briefly states its reasons for the order. §§ 603.4(e)(2); 691.4(l)(2). See also, Matter of Padilla, 67 NY2d 440, 503 NYS2d 550, 494 NE2d 1050 (1986). In the First Department, a post-suspension hearing is to be scheduled within 60 days of entry of the order. § 603.4(e)(2). See also, Matter of Russakoff, 79 NY2d 520, 583 NYS2d 949, 593 NE2d 1357 (1992) (prompt hearing after interim suspension is appropriate).

The Third Department’s rules note that the interim suspension order, together with any decision, is a public record; papers in connection with the application are confidential until the disciplinary matter has been concluded and charges sustained against the attorney. § 891.4(f)(3).
 

Collateral estoppel

Collateral estoppel was applied in a proceeding for interim suspension in the First Department. The attorney had represented himself and his wife in a landlord-tenant action. The trial court in that action found that the attorney had offered a forged lease into evidence and had given false testimony as well. In addition to finding an immediate threat to the public interest, the Appellate Division also found that the previous trial court’s findings were uncontested as to purposefully proffering a forged document and engaging in frivolous ligation, resulting in an additional six months’ suspension. Matter of Truong, 2 AD3d 27, 768 NYS2d 450 (1st Dept 2003). The attorney was thereafter disbarred. Matter of Truong, 22 AD3d 62, 800 NYS2d 12 (1st Dept 2005).


Denial of interim suspension

Interim suspension is appropriate where the violation is clear-cut and immediate action is required. A proceeding for interim suspension may be denied where the misconduct is not uncontroverted. Matter of Russakoff, 79 NY2d 520, 583 NYS2d 949, 593 NE2d 1357 (1992).


The Third Department denied a motion for interim suspension based on a conviction of a serious crime. The felony counts of the indictment had been dismissed and the attorney was convicted of a misdemeanor. The attorney’s trial motion to dismiss this count was still pending at the time of the motion for interim suspension. The papers submitted in support of the suspension lacked specificity as to the underlying acts of the attorney. Matter of Evans, 250 AD2d 922, 675 NYS2d 380 (3d Dept 1998).


An order of interim suspension based on a foreign conviction was deferred where the attorney alleged mitigating circumstances, the Third Department instead referring the case to hearing. Matter of Taylor, 301 AD2d 781, 753 NYS2d 392 (3d Dept 2003).


An order of interim suspension based on non-cooperation was vacated in the First Department where the fraudulent interception of the attorney’s mail by a former employee (who was indicted for grand larceny and other felonies) resulted in the attorney not receiving notice of complaints being lodged against him. Within two weeks of the issuance of the interim suspension in 2003, the attorney had moved to stay that order, which the disciplinary committee had not opposed, and an Appellate Division justice had granted. The attorney thereafter cooperated with the investigation, and the underlying complaints were later dismissed. Matter of Dembin, 20 AD3d 26, 796 NYS2d 43 (1st Dept 2005).


Inventory of files

Where interim suspension results, another attorney may be appointed to inventory the suspended attorney’s files. Matter of Feinman, 182 AD2d 179, 587 NYS2d 652 (1st Dept 1992) (attorney’s whereabouts unknown).


Stay

In a Third Department case, interim suspension was finally ordered, after conditional stays of the suspension had been granted. The Appellate Division Department noted that it had been sympathetic in the past to the situation, but the attorney’s drug problem was such that he should be suspended to deter similar misconduct and to preserve the reputation of the bar. Matter of Jensen, 7 AD3d 878, 776 NYS2d 627 (3d Dept 2004).


An attorney who was interim suspended by the First Department moved to vacate that order and to appoint a receiver to assume responsibility for his files, and for permission to resign based upon physical and mental incapacity. The disciplinary committee cross-moved for indefinite suspension. The Appellate Division vacated the previous interim suspension order and denied the attorney’s request to resign. An indefinite suspension based on mental incapacity was granted, and a receiver was appointed to protect the interests of the clients. Matter of Wolf, 298 AD2d 39, 746 NYS2d 720 (1st Dept 2002).


© 2008 by Gary Muldoon