New York Codes, Rules and Regulations › Title 22 - JUDICIARY › Subtitle B - Courts › Chapter IV - Supreme Court › Subchapter E - All Departments › Part 1240 - Rules for Attorney Disciplinary Matters › Section 1240.8 - Proceedings in the Appellate Division

Current through Register Vol.
					 46, No. 28, July 10, 2024
(a) Procedure for formal disciplinary
					 proceedings in the Appellate Division.
(1) Formal disciplinary proceedings
					 shall be deemed special proceedings within the meaning of CPLR Article 4, and
					 shall be conducted in a manner consistent with the rules of the Court, the
					 rules and procedures set forth in this Part, and the requirements of Judiciary
					 Law § 90. U nless otherwise directed by the Court, there shall be (i) a
					 notice of petition and petition, which the Committee shall serve upon the
					 respondent in a manner consistent with Judiciary Law § 90(6), and which
					 shall be returnable on no less than 20 days' notice; (ii) an answer; and (iii)
					 a reply if appropriate. Except upon consent of the parties or by leave of the
					 Court or referee, no other pleadings or amendment or supplement of pleadings
					 shall be permitted. All pleadings shall be filed with the Court. The Court
					 shall permit or require such appearances as it deems necessary in each
					 case.
(2) Statement
					 of Disputed Facts. Within 20 days after service of the answer or, if
					 applicable, a reply, the Committee shall file with the Court a statement of
					 facts that identifies those allegations that the Committee contends are
					 undisputed and those allegations that the party contends are disputed and for
					 which a hearing is necessary. Within 20 days following submission by the
					 Committee, the respondent shall respond to the Committee's statement and, if
					 appropriate, set forth respondent's statement of facts identifying those
					 allegations that the respondent contends are undisputed and those allegations
					 that the respondent contends are disputed and for which a hearing is necessary.
					 In the alternative, within 30 days after service of the answer or, if
					 applicable, a reply, the parties may (i) file a joint statement advising the
					 Court that the pleadings raise no issue of fact requiring a hearing, or (ii)
					 file a joint stipulation of disputed and undisputed facts.
(3) Disclosure Concerning
					 Disputed Facts. Except as otherwise ordered by the Court, a party must, no
					 later than 14 days after filing a statement of facts with the Court as required
					 by section
					 1240.8(a)(2) of
					 these Rules, provide to any other party disclosure concerning the allegations
					 that the party contends are disputed. The disclosure shall identify the
					 following:
(i) the name of
					 each individual likely to have relevant and discoverable information that the
					 disclosing party may use to support or contest the disputed allegation and a
					 general description of the information likely possessed by that individual;
					 and
(ii) a copy of
					 each document that the disclosing party has in its possession or control that
					 the party may use to support or contest the allegation, unless copying such
					 documents would be unduly burdensome or expensive, in which case the disclosing
					 party may provide a description of the documents by category and location,
					 together with an opportunity to inspect and copy such documents.
(4) Subpoenas. Upon
					 application by the Committee or the respondent, the Clerk of the Court may
					 issue subpoenas for the attendance of witnesses and the production of books and
					 papers before Court or the referee designated by the Court to conduct a hearing
					 on the issues raised in the proceeding, at a time and place therein specified.
					 When there is good cause to believe that a potential witness will be
					 unavailable at the time of a hearing, the testimony of that witness may be
					 initiated and conducted, and used at the hearing, in a manner provided by
					 Article 31 of the New York Civil Practice Law and Rules.
(5) Discipline by Consent.
(i) At any time after the
					 filing of the petition with proof of service, the parties may file a joint
					 motion with the Court requesting the imposition of discipline by consent. The
					 joint motion shall include:
(A) a stipulation of facts;
(B) the respondent's
					 conditional admission of the acts of professional misconduct and the specific
					 rules or standards of conduct violated;
(C) any relevant aggravating and
					 mitigating factors, including the respondent's prior disciplinary record;
					 and
(D) the agreed
					 upon discipline to be imposed, which may include monetary restitution
					 authorized by Judiciary Law § 90(6-a).
(ii) When the proceeding includes allegations
					 that the respondent has willfully misappropriated or misapplied money or
					 property in the practice of law, and the respondent has conditionally admitted
					 facts establishing that restitution is owed, the parties, in the joint motion,
					 shall:
(A) identify the person or persons
					 whose money or property was willfully misappropriated or misapplied;
(B) specify the value of such money or
					 property; and
(C) state that the
					 respondent has consented to the entry of an order requiring the respondent to
					 make monetary restitution pursuant to Judiciary Law §
					 90(6-a).
(iii) The joint
					 motion shall be accompanied by an affidavit of the respondent acknowledging
					 that the respondent:
(A) conditionally admits
					 the facts set forth in the stipulation of facts;
(B) consents to the agreed upon
					 discipline;
(C) gives the consent
					 freely and voluntarily without coercion or duress; and
(D) is fully aware of the consequences of
					 consenting to such discipline.
(iv) Notice of the joint motion, without its
					 supporting papers, shall be served upon the referee, if one has been appointed,
					 and all proceedings shall be stayed pending the Court's determination of the
					 motion. If the motion is granted, the Court shall issue a decision imposing
					 discipline upon the respondent based on the stipulated facts and as agreed upon
					 in the joint motion. If the motion is denied, the conditional admissions shall
					 be deemed withdrawn and shall not be used against the respondent or the
					 Committee in the pending proceeding.
(6) Discipline on Default.
In the event a respondent fails to file an answer within
						the time period specified in these rules, the Committee may move the Court, on
						notice to the respondent, for an order finding the respondent in default,
						deeming the material allegations of the petition admitted by the respondent,
						and granting any other relief provided by law and warranted under the
						circumstances.