Tuesday, June 30, 2009

No Disability Suspension

The New York Appellate Division for the First Judicial Department declined the implement the Departmental Disciplinary Committee's proposal to convert a suspension for failure to cooperate with a disciplinary investigation into a disability suspension. Rather, the court continued the indefinite suspension until the lawyer is able to participate in the proceedings. The court's reasoning:

In support of its motion, the Committee avers that it had been advised by respondent's counsel that respondent, an 80-year old practitioner, has continued to deteriorate both physically and mentally and thus would not be capable of participating in the disciplinary proceeding. The Committee received a copy of a June 11, 2008 neuropsychologist's evaluation of respondent, as well as a letter from his treating physician. Collectively, these documents demonstrate that respondent suffers from cerebral vascular disease, and that his level of mental function has declined since entry of the order of suspension, as reflected in memory loss, cognitive impairment and significant depression, thus making it impossible for him to defend himself in the pending proceedings.

In issuing the prior order of suspension, we noted that " The Committee has presented clear, uncontested evidence of respondent's professional misconduct which immediately threatens the public interest. We further noted that "his failure to challenge the allegations that he engaged in professional misconduct by neglecting legal matters and failure to refund legal fees, except in one instance, constitutes uncontested evidence of professional misconduct. Additionally, his willful failure or refusal to pay money owed to a client, which debt is demonstrated by a judgment constitutes grounds for suspension.

While we are not unmindful of respondent's age and current physical and mental condition, the Committee has not submitted reasons nor precedent for its motion to vacate the prior order of suspension in toto.

This matter is factually indistinguishable from Matter of Fusco (18 AD3d 81 [2005]). There, as here, the respondent was initially suspended from practice on the basis of uncontested evidence of professional misconduct, as well as failure to cooperate with the Committee's investigation. Subsequent to that order, the respondent submitted evidence of physical and mental incapacity and the Committee sought a further order suspending respondent on those grounds.

We granted the motion and vacated that portion of the prior order which dealt with respondent's lack of cooperation with the Committee's investigation, based upon the medical evidence submitted to the Committee.

There is no reason to depart from that precedent in this case. The evidence of respondent's professional misconduct is uncontested and, while the evidence before us explains his inability to defend himself at these proceedings, it does not explain nor controvert the findings of professional misconduct alleged herein. There is no basis to disturb the suspension based upon professional misconduct on the record before us.

I find this result rather harsh as the medical information indicates that this does not appear to be the type of disability that can be remedied. The public is as protected by a suspension based on disability as by an indefinite suspension. (Mike Frisch)


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The Court's opinion is poorly written but I think that in fact the Court is agreeing with the Committee and is effectively granting a disability suspension. See the final paragraph:

/// Accordingly, as respondent's physical and mental condition prevent him from adequately defending himself in these proceedings, the Committee's motion should be granted solely to the extent that the prior finding of non-cooperation is vacated and respondent should be suspended from the practice of law in the State of New York for an indefinite period, until such time as he is physically and mentally able to participate in the disciplinary proceeding against him, and until further order of this Court, effective nunc pro tunc to January 3, 2008. \\\

The impression I get is that the Court simply does not want to be seen as overruling its prior suspension even though that is exactly what it is doing. It states that it is following In re Fusco, which it finds indistinguishable, and that is what the court in Fusco also did.

I do, however, find some of the reasoning perverse and upsetting. The Court states that:

/// The evidence of respondent's professional misconduct is uncontested and, while the evidence before us explains his inability to defend himself at these proceedings, it does not explain nor controvert the findings of professional misconduct alleged herein. \\\

However, if the lawyer is unable to defend himself, then how is he supposed to explain or controvert the findings of professional misconduct? Isn’t that the whole point of being unable to defend oneself?

I see a lot of absurd opinions in the attorney discipline area, but no court is more absurd than the First Department. Unfortunately, they just don’t seem to care how bad they look.


Posted by: FixedWing | Jun 30, 2009 10:06:27 AM

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