Issues In NY Criminal Law--Vol. 7, #2Issue: Disciplinary Issues in Criminal Law Practice
The errors of a criminal defense attorney in New York State rarely result in a finding of legal malpractice. See Carmel v Lunney, 70 NY2d 169, 518 NYS2d 605, 511 NE2d 1126 (1987). However, improper actions by defense counsel may result in disciplinary action.
Neglect of files
Neglect of assigned criminal files can result in disciplinary action. DR 6-101(A)(3); 22 NYCRR 1200.30(A)(3); Matter of Wachs, 225 AD2d 23, 647 NYS2d 766 (1st Dept 1996) (censure); Matter of Staehle, 187 AD2d 208, 593 NYS2d 76 (2d Dept 1983) (suspension); Matter of Granat, 219 AD2d 255, 641 NYS2d 678 (2d Dept 1996); Matter of Calderone, 189 AD2d 1, 595 NYS2d 66 (2d Dept 1993); Matter of Saffioti, 209 AD2d 119, 624 NYS2d 642 (2d Dept 1995).
Where an attorney was retained to represent a defendant and entered an appearance but thereafter failed to communicate with the client, and failed to appear in court as directed, the attorney was disciplined. Matter of Hampden, 11 AD3d 17, 784 NYS2d 109 (2d Dept 2004).
Private billing practices
Improperly billing practices may result in disciplinary action. This may involve assigned counsel as well as private clients.
The leading case in New York regarding the client’s right to choose an attorney arose out of representation in a criminal case. Matter of Cooperman, 83 NY2d 465, 611 NYS2d 465 (1994). A minimum fee agreement for work to the conclusion of the case is permissible; what is impermissible is a nonrefundable agreement. The retainer in Cooperman contained a nonrefundable provision, despite the attorney having been cautioned about this previously. The attorney was suspended for six months.
In another case, an attorney was paid to take an appeal that was dismissed for failure to perfect. He asked client to withdraw on grounds that it was frivolous. The client was deported, and the attorney refused to respond to a request for partial refund or for an accounting. The attorney also failed to return bail money given to him to post bond or returned after resolution of the case. Other problems included a nonrefundable retainer agreement and previous disciplinary action. The attorney was disbarred. Matter of Perez-Olivo, 33 AD3d 141, 820 NYS2d 14 (1st Dept 2006). See also, Matter of Riccio, 131 AD2d 973, 517 NYS2d 791 (3d Dept 1987) (suspension for failure to pursue appeal after being paid).
Overcharging for services may result in discipline. Generally, see 25 ALR6th 1.
Assigned counsel billing
With assigned counsel (18-b) billing, discipline has been imposed in a number of cases. Matter of Goldman, 11 AD3d 178, 784 NYS2d 496 (1st Dept 2004) (three year suspension); Matter of Stone, 230 AD2d 481, 657 NYS2d 2 (1st Dept 1997) (criminal conviction, one year suspension). See also, Matter of Entin, 287 AD2d 943, 732 NYS2d 648 (3d Dept 2001); Matter of Stern, 90 AD2d 338, 457 NYS2d 67 (1st Dept 1982) (Family Court).
Overbilling for assigned cases may result in criminal prosecution for larceny-related crimes. An attorney who submitted false vouchers for assigned counsel work was convicted of a misdemeanor, Criminal Facilitation 4th degree, receiving a conditional discharge, community service, and restitution of $130,000. In the disciplinary proceeding, the attorney was suspended from practice for two years. Matter of Carmen, 25AD3d 250, 806 NYS2d 82 (2d Dept 2005). See also, People v Tirelli, 156 AD2d 738, 549 NYS2d 489 (2d Dept 1989).
Return of bail
With bail, an attorney took possession of a client’s bail refund without notifying anyone and spending it, when the attorney knew or should have known that it should have been returned to client. The attorney’s position -- that he acted in the mistaken belief that he could retain the refund pending resolution of a fee dispute with the client -- was no defense. The attorney never told complainant contemporaneously that he believed he was owed additional fees nor did he ever send the client a statement of hours worked or additional fees due. Suspension for 18 months was ordered. Matter of Marley, 29 AD3d 1, 816 NYS2d 2 (1st Dept 2006).
Advising client of right to appeal
Appellate Division rules in each department require defense counsel who to inform a client in writing of the right to appeal.
Failure to so inform a defendant of the right to appeal is “improper conduct.” People v Zanghi, 159 AD2d 1030, 552 NYS2d 463 (4th Dept 1990).
Misconduct towards client
Engaging in inappropriate conduct with a client may also result in disciplinary action. Matter of Bernstein, 237 AD2d 89, 666 NYS2d 723 (2d Dept 1997) (pattern of sexual remarks, disbarment).
Inappropriate conduct in or out of court may result in disciplinary action. Making inappropriate facial expressions and other inappropriate behavior in the jury's presence warranted censure. Matter of Billingsley, 20 AD3d 123, 796 NYS2d 765 (4th Dept 2005).
Where an attorney sought to dissuade a witness from responding to a subpoena, it resulted in criminal charges as well as disciplinary action. Matter of Rowe, 43 AD3d 1452, 841 NYS2d 901 (4th Dept 2007).
Failing to represent a client zealously in a criminal case resulted in the conviction being set aside due to ineffective assistance of counsel, People v Laraby, 305 AD2d 1121, 762 NYS2d 456 (4th Dept 2003), as well as a later finding of attorney discipline for misconduct. Matter of Jayson, 39 AD3d 30, 832 NYS2d 696 (4th Dept 2007).
Misconduct in federal case
In Matter of Cohn, 308 AD2d 79, 761 NYS2d 177 (1st Dept 2003), an attorney was disciplined for, among other things, what happened at a federal proffer session. The attorney made inaccurate and misleading statements to an AUSA as to why his client canceled a proffer session and, at the session, the attorney knew that information his client gave was false but took no steps to correct "the record." The attorney was suspended for five years.
Disciplinary action against prosecutor
Rarely is a prosecutor disciplined for misconduct. In one disciplinary result that was viewed at the time as startling, the prosecutor was suspended for three years. The prosecutor lied to the court about knowing about the whereabouts of a murder witness whom the prosecutor had met four days earlier. The prosecutor had one prior letter of caution. Matter of Stuart, 22 AD3d 131, 803 NYS2d 577 (2d Dept 2005).
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