2023 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.