In the last few weeks, readers of this journal will have seen that literally thousands of New York lawyers have been administratively suspended from law practice for violating New York Judiciary Law sections 90(2) and 468-a, the statutes that require all New York licensed attorneys to biennially register with the Office of Court Administration (OCA) and pay a $375 registration fee.
As distinct from administrative suspensions, which can be remedied with relative ease, New York lawyers who are suspended or disbarred for disciplinary reasons will likely find the reinstatement process to be much lengthier and more difficult. This column focuses on the paths to reinstatement for lawyers who are either administratively suspended or suspended or disbarred for disciplinary reasons.
As noted, lawyers who fail to reregister with OCA every two years, and/or fail to pay their bar dues, will eventually be administratively suspended for their delinquency. But the odd fact is, while lawyers suspended for failing to register may also face discipline (especially if they disregard the order of administrative suspension), as a practical matter and in most of the Appellate Division departments, reinstatement is a relatively painless and straightforward process, with no disciplinary or financial consequences (interest and penalty are not assessed). All an administratively suspended lawyer must do is complete the necessary registration forms at OCA, pay back all registration fees, certify compliance with CLE requirements, and obtain a receipt from OCA confirming that all past due fees have been paid and registration completed.
The only other required step is a motion to the Appellate Division with supporting documents that include the OCA certification of up-to-date registration and fee payment, together with an affidavit that states: the date of the Court’s suspension order; the reason for the default in registration; a showing of full compliance with the suspension order and Judiciary Law §468-a; and, the residence or other address where communications may be directed.1
Six Months or Less
The First and Fourth departments have a reinstatement rule specifically applicable to attorneys who have been suspended for six months or less on account of disciplinary violations.2 In those jurisdictions, an attorney seeking reinstatement at the end of a six month suspension need simply make a motion to the Appellate Division with an accompanying affidavit that is essentially an updated version of the affidavit of compliance that the attorney was required to file at the inception of the suspension. In other words, an attorney seeking reinstatement in this context must only show that he or she has fully complied with the order of suspension.
A copy of the motion must be served on the Disciplinary or Grievance Committee that prosecuted the matter, as well as the Lawyers’ Fund for Client Protection. Assuming no objection by such committee or the fund, the court will generally issue an order of reinstatement within a relatively short period.
Suspended (hereafter, lawyers suspended for longer than six months) or disbarred lawyers have a much higher mountain to climb. By statute, disbarred lawyers may not apply for reinstatement for seven years following the effective date of the order of disbarment.3 But whether suspended or disbarred, the lawyer seeking reinstatement must, in the first instance, petition the Appellate Division setting forth in substantial detail, in an accompanying affidavit, information sufficient for the court, and its delegated fact-finding committee, to evaluate whether the applicant has fully complied with the original order of suspension or disbarment, and now has the requisite character and fitness to rejoin the bar.4 All applicants have the burden of proof by clear and convincing evidence. They must also take and pass the Multi-State Professional Responsibility Exam (MPRE) within reasonable proximity to the filing of a petition for reinstatement.
Among the most important factors that the courts consider are the applicant’s: candor; acknowledgment of wrongdoing and expression of remorse; complete and unqualified compliance with the order of suspension or disbarment; gainful employment; evidence of financial responsibility; absence of arrests, convictions, or unpaid judgments; lawsuits; bankruptcies; any treatment for alcohol or drug abuse; compliance with the tax laws; and, restitution where applicable.
Because reinstatement to the bar following suspension or disbarment is highly discretionary, the courts generally accord substantial deference to the report and recommendation of the Grievance or Character Committee assigned to evaluate the petitioner. In that regard, and particularly where there has been a long suspension or disbarment, committees pay close attention to additional factors, including character evidence, pro bono or charitable work, whether the petitioner has kept up with CLE during the period of suspension or disbarment, and what concrete assurances the petitioner can provide that the underlying misconduct will never recur.
Suspended or disbarred lawyers seeking to be reinstated should carefully review their Appellate Division’s rule setting forth the detailed requirements for reinstatement, which differ by department. In cases involving administrative suspensions or short disciplinary suspensions, the process of reinstatement is straightforward and can be achieved relatively quickly. In essence, it involves filing a simple motion.
For disciplinary suspensions of greater duration, or for disbarred lawyers, a more difficult and lengthy process needs to be carefully navigated, with particular attention paid to the initial, factually intense petition, and to diligent preparation for the evidentiary hearing which follows. Because, in the end, the determination to reinstate is highly discretionary in such cases, these petitioners must clearly demonstrate, at a minimum, full compliance with the initial order of suspension or disbarment, and convincing rehabilitation, to succeed.
Reprinted with permission from the November 29, 2013 edition of the New York Law Journal ©2013 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 – firstname.lastname@example.org or visit www.almreprints.com.
- Readers of this column should not infer that there are no disciplinary consequences for failure to reregister. Noncompliance with the attorney registration provisions may exacerbate difficulties for an attorney under investigation by a disciplinary authority for other matters, particularly where violation of the registration rules makes it harder for a disciplinary committee to locate and communicate with the attorney. See Matter of Anyikwa, 109 A.D.3d 76 (1st Dept. 2013) (suspending attorney in part due to failure to comply with Judiciary Law §468-a(2)); Matter of Banji, 106 A.D.3d 73 (1st Dept. 2013) (suspending attorney and noting that his failure to register for the biennial period and failure to notify OCA of changes to his addresses and telephone numbers is prejudicial to the administration of justice).
- See 22 N.Y.C.R.R. §§603.14(a)(1) (First Department); 1022.28(b)(2) (Fourth Department).
- See N.Y. Judiciary Law §90(5)(b).
- The First, Second, and Fourth departments require petitioners to use application forms specifically provided in the rules. See 22 N.Y.C.R.R. §§603.14(m) (First Department); 691.11(b) (Second Department); 1022.28(a)(3) and (b)(3) (Fourth Department).
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