Friday, October 24, 2008

Disbarred For, Inter Alia, Disinterest

An attorney convicted of intentional disobedience of a court order of protection "by leaving a series of letters, cash and gifts at a woman's residence" was placed on probation and later charged with violation of the probation conditions. He failed to appear and his whereabouts are unknown. The New York Appellate Division for the Third Judicial Department disbarred the lawyer in light of the conviction and his "disinterest in his fate as an attorney" as evidenced by his non-participation in the bar proceedings. (Mike Frisch)

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One has to wonder how the Court can conclude that the lawyer was "disinterest in his fate as an attorney" when, apparently, the lawyer had no actual knowledge of the hearing. Lack of interest is a mental state which requires actual knowledge of the proceeding. While personal jurisdiction can be achieved through substitute service, that doesn’t allow the Court to presume actual knowledge.

What is strange about this opinion is that the Court did not connect the dots. Usually when they order substituted service, they will claim that the lawyer has failed to notify the Court of his correct address as he is required to do. They will also usually point to the lawyer being late in his fee payments. It is this failure to maintain his registration which then allows the Court to conclude that the lawyer is disinterested. So why did the Court not do this in this case?

Fortunately, New York’s rules do allow the lawyer to vacate the disbarment order within a certain period of time if he did not have actual knowledge of the proceeding. But how will he know to do so? I presume that the disbarment order will also be given by substitute service.


Posted by: FixedWing | Oct 25, 2008 2:27:37 PM

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