NY Jud L § 90 (2021)
2021 New York Laws JUD - Judiciary Article 4 - Appellate Division 90 - Admission to and Removal From Practice by Appellate Division; Character Committees.

§  90.  Admission  to and removal from practice by appellate division;   character committees. 1. a.  Upon  the  state  board  of  law  examiners   certifying  that  a  person has passed the required examination, or that   the examination has been dispensed with, the appellate division  of  the   supreme  court  in  the  department to which such person shall have been   certified by the state board of law examiners, if it shall be  satisfied   that  such  person possesses the character and general fitness requisite   for an attorney and counsellor-at-law and has satisfied the requirements   of section 3-503 of the general obligations  law,  shall  admit  him  to   practice  as  such  attorney  and counsellor-at-law in all the courts of   this state, provided that he has in all respects complied with the rules   of the court of  appeals  and  the  rules  of  the  appellate  divisions   relating to the admission of attorneys.b.  Upon  the  application,  pursuant  to  the  rules  of the court of   appeals, of any person who has been admitted to practice law in  another   state  or  territory or the District of Columbia of the United States or   in a foreign country, to be admitted to  practice  as  an  attorney  and   counsellor-at-law in the courts of this state without taking the regular   bar  examination,  the  appellate  division  of the supreme court, if it   shall be satisfied that such person is currently admitted to the bar  in   such  other  jurisdiction  or  jurisdictions,  that  at  least  one such   jurisdiction in which  he  is  so  admitted  would  similarly  admit  an   attorney  or counsellor-at-law admitted to practice in New York state to   its bar without examination and that such person possesses the character   and general fitness requisite for an attorney and counsellor-at-law  and   has   satisfied  the  requirements  of  section  3-503  of  the  general   obligations law, shall admit  him  to  practice  as  such  attorney  and   counsellor-at-law in all the courts of this state, provided, that he has   in  all respects complied with the rules of the court of appeals and the   rules of the appellate divisions relating to the admission of attorneys.   Such application, which shall conform to  the  requirements  of  section   3-503  of  the  general  obligations  law,  shall  be  submitted  to the   appellate division of the supreme court in the department  specified  in   the rules of the court of appeals.c. The members of the committee appointed by the appellate division in   each  department  to investigate the character and fitness of applicants   for  admission  to  the  bar,  shall  be  entitled  to  their  necessary   traveling,  hotel  and  other  expenses,  incurred in the performance of   their duties, payable by the state out of moneys appropriated  therefor,   upon  certificate  of the presiding justice of the appellate division by   which such committee is appointed.d. The committee on character and fitness appointed by  the  appellate   division  of  the supreme court in the first judicial department and the   committee on character and fitness appointed by the  appellate  division   of  the  supreme court of the second judicial department, may each, with   the written consent of the justices of each of such appellate  divisions   or  a  majority  of such justices, acting for their respective appellate   divisions,  from  time  to  time,  appoint  and  remove   a   secretary,   stenographers  and  assistants,  and  procure a suitable office for each   committee, properly furnished and equipped and  all  books,  stationery,   blanks, postal cards, expressage and postage stamps as shall be required   for the proper performance of the duties of each such committee.e.  The salaries of such secretary, stenographers and assistants shall   be fixed for each department by the justices of the  appellate  division   in each department or a majority of them in each department.f.  The  salaries  of such secretary, stenographers and assistants and   the necessary expenses under the terms of this act in the first judicial    department, shall, in the said first judicial department, be paid by the   comptroller of the city of New York.g.  The  salaries  of such secretary, stenographers and assistants and   the necessary expenses under  the  terms  of  this  act  in  the  second   judicial  department shall be certified by the presiding justice of such   department to the state comptroller who shall audit the same. The  state   department  of taxation and finance shall pay such salaries and expenses   and shall apportion the same among the counties  comprising  the  second   judicial  department.  Such  counties shall reimburse the state for such   compensation. The time and method of such apportionment and the time and   method  of  such  reimbursement  shall  be  as  specified   in   section   seventy-four of this chapter.2.  The  supreme court shall have power and control over attorneys and   counsellors-at-law and all persons practicing or  assuming  to  practice   law,  and the appellate division of the supreme court in each department   is authorized to censure, suspend from practice or  remove  from  office   any attorney and counsellor-at-law admitted to practice who is guilty of   professional   misconduct,   malpractice,   fraud,   deceit,   crime  or   misdemeanor,  or  any  conduct  prejudicial  to  the  administration  of   justice;  and  the  appellate  division  of  the supreme court is hereby   authorized  to  revoke  such  admission  for  any  misrepresentation  or   suppression  of  any  information in connection with the application for   admission to practice.It shall be the duty of the appellate division to insert in each order   of suspension or removal hereafter  rendered  a  provision  which  shall   command  the  attorney  and  counsellor-at-law  thereafter to desist and   refrain from the practice of law in any form, either as principal or  as   agent,  clerk  or  employee  of another. In addition it shall forbid the   performance of any of the following acts, to wit:a. The appearance as  an  attorney  or  counsellor-at-law  before  any   court, judge, justice, board, commission or other public authority.b.  The  giving  to  another  of  an  opinion  as  to  the  law or its   application, or of any advice in relation thereto.In case of suspension only, the order may limit  the  command  to  the   period  of  time  within  which  such  suspension shall continue, and if   justice so requires may further limit the scope thereof.If an attorney and counsellor-at-law has been heretofore removed  from   office,  the  appellate  division shall upon application of any attorney   and counsellor-at-law, or of any incorporated bar association, and  upon   such  notice  to  the  respondent as may be required, amend the order of   removal by adding thereto as a part thereof, provisions similar to those   required to be inserted in orders hereafter made.If a certified copy of such order or of such amended order, be  served   upon  the  attorney  and  counsellor-at-law  suspended  or  removed from   office, a violation thereof may be punished as a contempt of court.2-a. a. The provisions of this subdivision shall apply in all cases of   an attorney licensed, registered or admitted to practice in  this  state   who  has  failed  after  receiving  appropriate notice, to comply with a   summons, subpoena or warrant relating to a paternity  or  child  support   proceeding  involving  him  or  her  personally, or who is in arrears in   payment of child support or combined child  and  spousal  support  which   matter  shall  be  referred  to  the appropriate appellate division by a   court pursuant to the requirements of section two  hundred  forty-four-c   of  the  domestic  relations  law  or  pursuant  to section four hundred   fifty-eight-b or five hundred forty-eight-b of the family court act.b. Upon receipt of an order from the court based on arrears in payment   of child support or combined child and spousal support pursuant  to  one   of  the  foregoing provisions of law, the appropriate appellate division    within thirty days of receipt of such order, if it finds such person  to   be  so  licensed,  registered  or admitted, shall provide notice to such   attorney of, and initiate, a hearing which shall be held by it at  least   twenty  days  and  no  more  than  thirty days after the sending of such   notice to the attorney. The hearing shall be held solely for the purpose   of determining whether there exists as of the date of the hearing  proof   that  full payment of all arrears of support established by the order of   the court to be due from the licensed, registered or  admitted  attorney   have been paid. Proof of such payment shall be a certified check showing   full  payment  of established arrears or a notice issued by the court or   the support collection unit where the order is payable  to  the  support   collection  unit designated by the appropriate social services district.   Such notice shall state that full payment  of  all  arrears  of  support   established  by  the  order  of  the court to be due have been paid. The   licensed attorney shall be given full opportunity to present such  proof   of  payment at the hearing in person or by counsel. The only issue to be   determined as a result of the hearing is whether the arrears  have  been   paid. No evidence with respect to the appropriateness of the court order   or  ability of the respondent party in arrears to comply with such order   shall be received or considered by the disciplinary committee.c. Upon receipt of an order from the court based on failure to  comply   with  a  summons,  subpoena, or warrant relating to a paternity or child   support proceeding, the appropriate  appellate  division  within  thirty   days  of  receipt  of  such  order,  if  it  finds  such person to be so   licensed, registered or admitted, shall provide notice to such  attorney   that  his  or  her  license shall be suspended within sixty days of such   notice to the attorney unless the conditions  in  paragraph  e  of  this   section are met.d.  Notwithstanding  any  inconsistent provision of this section or of   any other provision of law to the contrary, the license to practice  law   in  this state of an attorney admitted to practice shall be suspended by   the appellate division if, at the hearing provided for by paragraph b of   this subdivision, the  licensed  attorney  fails  to  present  proof  of   payments  as  required by such subdivision. Such suspension shall not be   lifted unless the original court or the support collection  unit,  where   the  court order is payable to the support collection unit designated by   the appropriate social services district, issues notice to the appellate   division that full payment of all arrears of support established by  the   order of the original court to be due have been paid.e.  Notwithstanding  any  inconsistent provision of this section or of   any other provision of law to the contrary, the license of  an  attorney   admitted  to  practice  law  in  this  state  shall  be suspended by the   appellate division, in accordance with paragraph c of  this  subdivision   unless   the   court   terminates   its  order  to  commence  suspension   proceedings. Such suspension shall not be lifted unless the court issues   an order to the appellate division terminating  its  order  to  commence   suspension proceedings.f.  The  appellate  division  shall  inform  the original court of all   actions taken hereunder.g. This subdivision two-a  applies  to  paternity  and  child  support   proceedings  commenced  under,  and support obligations paid pursuant to   any order of child support or child and  spousal  support  issued  under   provisions of section two hundred thirty-six or two hundred forty of the   domestic  relations  law, or article four, five, five-A or five-B of the   family court act.h. Notwithstanding any inconsistent provision of this  section  or  of   any  other  provision  of  law  to  the contrary, the provisions of this   subdivision two-a shall apply to the exclusion of any other requirements    of this section and to the exclusion of any other requirement of law  to   the contrary.3.  The  suspension or removal of an attorney or counsellor-at-law, by   the appellate division of the supreme court, operates as a suspension or   removal in every court of the state.4. a. Any person being an attorney and counsellor-at-law who shall  be   convicted  of  a  felony  as defined in paragraph e of this subdivision,   shall  upon   such   conviction,   cease   to   be   an   attorney   and   counsellor-at-law, or to be competent to practice law as such.b. Whenever any attorney and counsellor-at-law shall be convicted of a   felony  as  defined  in  paragraph  e  of this subdivision, there may be   presented to the appellate division of the supreme court a certified  or   exemplified  copy  of the judgment of such conviction, and thereupon the   name of the person so convicted shall, by order of the court, be  struck   from the roll of attorneys.c.  Whenever  an  attorney shall be convicted of a crime in a court 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,   district  or territory or of the United States which does not constitute   a felony under the laws of this state, and any other crime  a  necessary   element of which, as determined by 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.e. For purposes of this subdivision, the term felony  shall  mean  any   criminal  offense classified as a felony under the laws of this state or   any  criminal  offense  committed  in  any  other  state,  district,  or   territory  of the United States and classified as a felony therein which   if committed within this state, would constitute a felony in this state.f. Any attorney and counsellor-at-law convicted of a serious crime, as   defined in paragraph d of this subdivision, whether by plea of guilty or   nolo contendere or from a verdict after trial  or  otherwise,  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.Upon good cause shown the appellate division of the supreme court may,   upon  application  of  the attorney or on its own motion, set aside such   suspension when it  appears  consistent  with  the  maintenance  of  the   integrity  and honor of the profession, the protection of the public and   the interest of justice.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.h.  If  the attorney requests a hearing, the appellate division of the   supreme court shall refer the proceeding to a referee, justice or  judge   appointed   by   the   appellate   division   for  hearing,  report  and   recommendation. After said hearing, the appellate division may impose such  discipline   as it deems proper under the facts and circumstances.5.  a.  If  such  removal or debarment was based upon conviction for a   serious crime or upon a felony conviction as defined in subdivision four   of this section, and such felony conviction was subsequently reversed or   pardoned by the president of the United States, or governor of  this  or   another  state  of  the United States, the appellate division shall have   power to vacate or modify such order or  debarment,  provided,  however,   that  if  such  attorney  or  counsellor-at-law  has  been  removed from   practice in another jurisdiction, a pardon in  said  jurisdiction  shall   not  be  a  basis  for application for re-admission in this jurisdiction   unless he shall have been readmitted in the jurisdiction where pardoned.b. If such removal or debarment was based upon conviction for a felony   as defined in subdivision four of this section, the  appellate  division   shall  have  power  to  vacate or modify such order or debarment after a   period of seven years provided that such person has not  been  convicted   of a crime during such seven-year period.c.  An  attorney  and  counsellor-at-law  who  has been convicted of a   felony without the state and whose name has been struck from the roll of   attorneys prior to July thirteenth,  nineteen  hundred  seventy-nine  by   virtue  of the provisions of subdivision four of this section may, if he   alleges  that  such  felony  committed  without  the  state  would   not   constitute  a  felony  if  committed  within  the  state,  petition  the   appellate division to vacate or modify such debarment. If the  appellate   division   finds   that   the   felony   of   which   the  attorney  and   counsellor-at-law  has  been  convicted  without  the  state  would  not   constitute  a  felony  if  committed  within the state, it shall grant a   hearing and may retroactively vacate or modify such debarment and impose   such discipline as  it  deems  just  and  proper  under  the  facts  and   circumstances.The attorney and counsellor-at-law shall petition for reinstatement by   filing in the appellate division a copy of the order of removal together   with  a  request  for  a  hearing  pursuant  to  the  provisions of this   paragraph. Upon such application, the order of removal shall  be  deemed   an order of suspension for the purposes of a proceeding pursuant to this   paragraph.6.  Before an attorney or counsellor-at-law is suspended or removed as   prescribed in this section, a copy of the charges against  him  must  be   delivered  to  him personally within or without the state or, in case it   is established to the satisfaction  of  the  presiding  justice  of  the   appellate  division  of the supreme court to which the charges have been   presented, that he cannot with due diligence be served  personally,  the   same  may  be  served  upon him by mail, publication or otherwise as the   said presiding justice may direct, and he must be allowed an opportunity   of being heard in his defense. In all cases where the charges are served   in  any  manner  other   than   personally,   and   the   attorney   and   counsellor-at-law  so served does not appear, an application may be made   by such attorney or in his  behalf  to  the  presiding  justice  of  the   appellate  division  of  the  supreme  court  to  whom  the charges were   presented at any time  within  one  year  after  the  rendition  of  the   judgment,  or  final order of suspension or removal, and upon good cause   shown and upon such terms as  may  be  deemed  just  by  such  presiding   justice,  such  attorney and counsellor-at-law must be allowed to defend   himself against such charges.The justices of the appellate division in any judicial department,  or   a  majority  of  them,  may  make an order directing the expenses of any   disciplinary proceedings, and the necessary costs and  disbursements  of   the petitioner in prosecuting such charges, including the expense of any    preliminary  investigation  in  relation  to  professional conduct of an   attorney and counsellor-at-law, to be paid out of funds appropriated  to   the office of court administration for that purpose.6-a.  a.  Where  the  appellate  division  of supreme court orders the   censure, suspension from practice or removal from office of an  attorney   or  counsellor-at-law  following  disciplinary  proceedings  at which it   found, based upon a preponderance of the  legally  admissible  evidence,   that  such  attorney  or  counsellor-at-law  wilfully misappropriated or   misapplied money or property in the  practice  of  law,  its  order  may   require  him or her to make monetary restitution in accordance with this   subdivision. Its order also may require that he  or  she  reimburse  the   lawyers'  fund for client protection of the state of New York for awards   made to the person whose money or property was wilfully  misappropriated   or misapplied.b. Monetary restitution, as authorized hereunder, shall be made to the   person   whose   money  or  property  was  wilfully  misappropriated  or   misapplied and shall be for  the  amount  or  value  of  such  money  or   property,  as  found  in the disciplinary proceedings. In the event that   such person dies prior to completion of  such  restitution,  any  amount   remaining to be paid shall be paid to the estate of the deceased.c.  Any payment made as restitution pursuant to this subdivision shall   not limit, preclude or impair any liability for  damages  in  any  civil   action  or proceeding for an amount in excess of such payment; nor shall   any order of the appellate division made hereunder  deprive  a  criminal   court of any authority pursuant to article sixty of the penal law.d.  An  order  issued pursuant to this subdivision may be entered as a   civil judgment. Such judgment shall be enforceable as a  money  judgment   in  any  court  of competent jurisdiction by any person to whom payments   are due thereunder, or by the lawyers' fund for client protection  where   it has been subrogated to the rights of such person.e.  Where an attorney or counsellor-at-law is permitted to resign from   office, the appellate division may, if appropriate, issue  an  order  as   provided  herein requiring him or her to make payments specified by this   subdivision.f. Notwithstanding any other provision of this subdivision,  no  order   may  be  issued  hereunder  unless  the person required to make payments   under such order first is given an opportunity to be heard in opposition   thereto.7. In addition to the duties prescribed by section  seven  hundred  of   the  county  law, it shall be the duty of any district attorney within a   department, when so designated by the justices of the appellate division   of the supreme court in such department,  or  a  majority  of  them,  to   prosecute all proceedings for the removal or suspension of attorneys and   counsellors-at-law  or  the  said  justices,  or  a majority of them may   appoint any attorney and  counsellor-at-law  to  conduct  a  preliminary   investigation  and to prosecute any disciplinary proceedings and, during   or upon the termination of the investigation or proceedings, may fix the   compensation to be paid to such attorney and counsellor-at-law  for  the   services  rendered,  which  compensation  shall  be a charge against the   county specified in his certificate and shall be paid thereon.8. Any petitioner or respondent in a disciplinary  proceeding  against   an  attorney  or  counsellor-at-law  under this section, including a bar   association or any other corporation  or  association,  shall  have  the   right  to  appeal  to  the  court  of  appeals from a final order of any   appellate division in such proceeding upon  questions  of  law  involved   therein,  subject  to  the  limitations  prescribed  by section three of   article six of the constitution of this state. 9. No objection shall be taken to the appointment of any member of the   bar to act as referee or judge in a disciplinary proceeding  under  this   section  on the ground that he is a member of a bar association or other   corporation or association which is the petitioner therein.10.  Any  statute or rule to the contrary notwithstanding, all papers,   records and documents upon the application or examination of any  person   for  admission  as  an  attorney  and  counsellor  at  law  and upon any   complaint, inquiry, investigation or proceeding relating to the  conduct   or discipline of an attorney or attorneys, shall be sealed and be deemed   private  and  confidential.  However,  upon  good cause being shown, the   justices of the appellate division having jurisdiction are empowered, in   their discretion, by written order, to permit to be divulged all or  any   part  of  such  papers,  records and documents. In the discretion of the   presiding or acting presiding justice of said appellate  division,  such   order  may  be made either without notice to the persons or attorneys to   be affected thereby or upon such notice to them as  he  may  direct.  In   furtherance  of  the purpose of this subdivision, said justices are also   empowered, in their discretion, from time to time to make such rules  as   they  may  deem necessary. Without regard to the foregoing, in the event   that charges are sustained by the justices  of  the  appellate  division   having  jurisdiction  in  any  complaint,  investigation  or  proceeding   relating to the conduct or discipline of any attorney, the  records  and   documents in relation thereto shall be deemed public records.