Tuesday, October 27, 2009

Prostrate Problems

The New York Appellate Division for the First Judicial Department has disbarred an attorney who, after a misconduct suspension, had failed to file the required affidavit and had continued to practice law. The attorney had sought to resign rather than be disbarred but would not concede the violations:

After the foregoing matters came to the Committee's attention, respondent was given an opportunity to resign from the bar, as he stated was his preference. The affidavit of resignation that respondent tendered to the Committee failed, however, to comply with the requirements of 22 NYCRR 603.11. The Committee has therefore moved for respondent's summary disbarment.

Respondent, acting pro se, has submitted an opposition affidavit attaching an affidavit of resignation, which he asks this Court to accept in lieu of granting the Committee's motion. The affidavit of resignation, sworn to on May 20, 2009, is the same affidavit the Committee rejected. We agree with the Committee that this affidavit cannot be accepted, as it fails to comply with 22 NYCRR 603.11. Specifically, respondent has stricken from the affidavit (which the Committee drafted) the portions acknowledging the complaints against him that are under investigation, admitting that he could not successfully defend himself on the merits against charges based on such complaints, and affirming that he is not resigning under coercion or duress.

In his opposition affidavit, respondent contends that he should be allowed "to resign gracefully and with the dignity that should be allowed to a lawyer who spent almost 40 years of his life performing thousands of hours of pro bono work as an attorney." In addition, he names his treating psychiatrist and lists several medications that allegedly have been prescribed for him, asserting that this information warrants accepting his resignation on medical grounds. He states that he is "emotionally unable to participate in any hearings or referrals to referees as a result of my medical condition," in that he "cannot handle the stress which would be generated by such proceedings." He refuses, however, to admit the charges against him, and declines "to prostrate myself in order to resign from the Bar."

In reply, the Committee points out that respondent fails to address the evidence of his defiance of the interim suspension order, and reiterates that the proffered affidavit of resignation does not meet the requirements of 22 NYCRR 603.11.

The Committee has demonstrated that respondent, in willful defiance of this Court's order of interim suspension and of Judiciary Law § 486, has held himself out as an attorney, has openly and notoriously engaged in the unauthorized practice of law, and has failed to file an affidavit of compliance with his interim suspension. Since the Committee's evidence is not controverted in any way, respondent should be immediately disbarred pursuant to Judiciary Law § 90(2)...We note that, under Judiciary Law § 486, an attorney who engages in the practice of law while suspended is guilty of a misdemeanor. Respondent's affidavit of resignation cannot be accepted, as it fails to conform to the requirements of 22 NYCRR 603.11.

(Mike Frisch)

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