Issues In NY Criminal Law--Vol. 5, #5©
Issue: Effect of misdemeanor conviction on attorney
One of collateral consequences of a criminal conviction is its effect on employment. A ground for disciplinary action against an attorney is engaging in criminal activity. If the conviction is for a felony, it results in automatic disbarment. Judiciary Law § 90(4)(a).
As to other crimes, Judiciary Law § 90(4) states:
"(c) Whenever an attorney shall be convicted of a crime in a court of record of the United States or of any state, territory or district, including this state, whether by a plea of guilty or nolo contendere or from a verdict after trial or otherwise, the attorney shall file, within thirty days thereafter, with the appellate division of the supreme court, the record of such conviction.
The failure of the attorney to so file shall be deemed professional misconduct provided, however, that the appellate division may upon application of the attorney, grant an extension upon good cause shown.
(d) For purposes of this subdivision, the term serious crime shall mean any criminal offense denominated a felony under the laws of any state, . . . which does not constitute a felony under the laws of this state, and any other crime a necessary element of which, as determined by the statutory or common law definition of such crime, includes interference with the administration of justice, false swearing, misrepresentation, fraud, willful failure to file income tax returns, deceit, bribery, extortion, misappropriation, theft, or an attempt or conspiracy or solicitation of another to commit a serious crime.
(f) Any attorney and counselor-at-law convicted of a serious crime . . . shall be suspended upon the receipt by the appellate division of the supreme court of the record of such conviction until a final order is made pursuant to paragraph g of this subdivision.
(g) Upon a judgment of conviction against an attorney becoming final the appellate division of the supreme court shall order the attorney to show cause why a final order of suspension, censure, or removal from office should not be made."
Some but not all New York State misdemeanors are "serious crimes." For example, Petit larceny is considered a "serious crime" for purposes of attorney disciplinary action. Matter of Stone, 230 AD2d 481, 657 NYS2d 2 (1st Dept 1997). Upon conviction, the attorney is automatically suspended. The ultimate order of discipline may be suspension, but could also be disbarment, censure, or (rarely) dismissal, for example.
Other New York State misdemeanors are not "serious crimes," for example, Assault 3rd degree and misdemeanor DWI.
Different levels of discipline can be imposed, including:
- censure, Matter of Lubell, 246 AD2d 27, 676 NYS2d 78 (1st Dept 1998) (offering a gratuity to a federal employee); Matter of O'Brien, 309 AD2d 184, 765 NYS2d 71 (2d Dept 2003) (DWI and attempted EWOC); Matter of Minkel, 221 AD2d 28, 641 NYS2d 844 (1st Dept 1996) (failure to file tax return).
- suspension, Matter of Rotter, 241 AD2d 81, 670 NYS2d 445 (1st Dept 1998) (commercial bribing 2nd degree); Matter of Vickers, 227 AD2d 76, 651 NYS2d 157 (2d Dept 1996) (sexual abuse 3rd degree).
Length of suspension
Where the attorney was convicted of petit larceny via an Alford plea, it resulted in a two-year suspension, where the attorney had a prior disciplinary history. Matter of McLoughlin, 265 AD2d 9, 703 NYS2d 265 (2d Dept 2000).
Conviction of sexual misconduct, a class A misdemeanor, resulted in suspension for an attorney, who was sentenced to six years' probation, a $1,000 fine and was required to register under SORA. Defendant admitted under oath that he had sexual intercourse with an adult female without her consent. Mitigating factors were considered but were not determinative. The Third Department noted the importance of deterring similar conduct and to preserve the reputation of the bar. Matter of Boxley, 8 AD3d 949, 780 NYS2d 37 (3d Dept 2004).
Where the attorney was convicted of commercial bribing, a class A misdemeanor, for participating in bribery scheme involving insurance adjusters, and received a conditional discharge, fine and restitution, the discipline imposed was a suspension for six months. The suspension was not made nunc pro tunc to the period following the guilty plea when the lawyer ceased practicing law, when his law partner forced him out of the firm. Matter of Zasky, 281 AD2d 5, 721 NYS2d 330 (1st Dept 2001).
Where an attorney was convicted of a class A misdemeanor (criminal contempt 2nd) and placed on probation, his repeated use of cocaine in violation of probation, as well as other ethical violations, resulted in disbarment. Matter of Carrigan, 283 AD2d 63, 726 NYS2d 538 (4th Dept 2001).
A sentence of probation is not, in and of itself, a basis for suspension from the practice of law. According to First Department cases, for example, only in rare instances will the Appellate Division not suspend a defendant who is placed on probation and permit continued practice during the probationary period. Matter of Holtz, 230 AD2d 193, 654 NYS2d 765 (1st Dept 1997); Matter of Minkel, supra.
Necessity to report
Judiciary Law § 90(4)(c) requires an attorney who has been convicted of a crime to report the conviction within 30 days. Failure to inform itself is grounds for discipline. See also, 22 NYCRR § 1022.21 (Fourth Department).
A one-year suspension resulted from the failure to report the misdemeanor conviction as well as the underlying conduct (harassment 2nd, falsely reporting an incident). Matter of Santana, 233 AD2d 51, 662 NYS2d 499 (1st Dept 1997). An attorney's failure to inform the grievance committee of a conviction within 30 days itself resulted in censure. Matter of Lambert, 296 AD2d 151, 745 NYS2d 543 (2d Dept 2002). A conviction for attempted criminal possession of a forged instrument 3rd degree (a class B misdemeanor), and failure to comply with filing certificate of conviction with the Appellate Division within 30 days, resulted in censure. Matter of Dolin, 281 AD2d 74, 721 NYS2d 669 (2d Dept 2001).
"I distrust those people who know so well what God wants them to do because I notice it always coincides with their own desires." -- Susan B Anthony
A tactic used by a prosecutor in questioning a grand jury witness, most often in corruption cases. The prosecutor is uninterested in eliciting facts material to a substantive investigation of crime and substantially tailors questions to extract false answers. In such a situation, no valid perjury prosecution should lie in that false testimony frustrated no authorized purpose of the grand jury. Perjury trap is an affirmative defense to a prosecution for perjury. People v Kirsh, 176 AD2d 652, 575 NYS2d 306 (1st Dept 1991); People v Tyler, 46 NY2d 251, 413 NYS2d 295 (1978).
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