NCJ Number
56435
Journal
Fordham Law Review Volume: 47 Issue: 4 Dated: (MARCH 1979) Pages: 606-621
Date Published
1979
Length
16 pages
Annotation
THIS ARTICLE REVIEWS THE NEW YORK STATE PROCEDURES FOR DISCIPLINING ATTORNEYS, INDICATES THE PROBLEMS WITH THE AUTOMATIC FELONY DISBARMENT RULE, AND RECOMMENDS POSSIBLE SOLUTIONS INCLUDING A NEW RULE.
Abstract
ALTHOUGH THE NEW YORK POLICY OF DISBARRING ATTORNEYS CONVICTED OF FELONIES IS MOTIVATED BY THE HIGH PRINCIPLE OF PUBLIC PROTECTION, THE AUTOMATIC APPLICATION OF THE POLICY HAS PRODUCED BIZARRE RESULTS. NEW YORK LAW CLASSIFIES AS UNFIT TO PRACTICE LAW ANY ATTORNEY CONVICTED OF A FELONY, AND PROVIDES THE STATE ATTORNEY GENERAL WITH THE AUTHORITY TO PROSECUTE AN ATTORNEY WHO CONTINUES TO PRACTICE AFTER SUCH A CONVICTION. THE DISBARMENT IS EFFECTIVE REGARDLESS OF A PENDING APPEAL BECAUSE THE ISSUE OF WHETHER THE ATTORNEY HAS BREACHED A CONDITION OF HIS MEMBERSHIP IN THE BAR IS CONCLUSIVELY DETERMINED DURING THE INITIAL TRIAL. THE OMISSION OF A PROVISION IN THE NEW YORK LAW CONCERNING CONVICTIONS IN OTHER JURISDICTONS HAS CREATED CONSIDERABLE CONTROVERSY, PARTICULARLY IN CIRCUMSTANCES OF AN ATTORNEY'S CONVICTION FOR A CRIME WHICH IS A FELONY IN FEDERAL LAW, BUT NOT IN NEW YORK LAW. IN SUCH CASES, THE NEW YORK COURTS HAVE REFUSED TO APPLY THE AUTOMATIC DISBARMENT RULE. AUTOMATIC DISBARMENT MAY BE OVERLY HARSH PUNISHMENT FOR CRIMES WHICH DO NOT NECESSARILY IMPUGN AN ATTORNEY'S FITNESS AS COUNSEL. THE RECOMMENDATION IS MADE FOR THE USE OF AUTOMATIC DISBARMENT ONLY FOR CONVICTIONS OF SPECIFIC ENUMERATED CRIMES WHICH BY THEIR CONSTITUENT ELEMENTS ARE INDICATIVE OF UNTRUSTWORTHINESS OR MORAL DEFICIENCY. NUMEROUS FOOTNOTES ARE PROVIDED. PROPOSED STATUTES FOR DISBARMENT AFTER CONVICTION ARE APPENDED. (TWK)