Thursday, June 16, 2011

Case Two

An attorney suspended for a year in April has now been disbarred by the New York Appellate Division for the Third Judicial Department. This highlights a procedural issue that often confronts bar counsel and disciplinary adjudicators. We call it the problem of the "follow on" case.

When bar counsel has investigated a lawyer and decided to file charges, there may be ongoing investigations that are not completed. Also (and quite typically when the attorney is neglecting a practice), an attorney will continue to accumulate complaints after charges are filed.

When do you hold up pending matters to allow the "follow ons" to catch up? Delay may not be in the public interest.

When do you say enough and shut down? At least in D.C., you can only disbar someone once. We don't have consecutive disbarments in the District of Columbia--it's always five years. The answer to this question also implicates the limited resources of a bar disciplinary system.

In my day (which ended almost exactly a decade ago), once we had an attorney suspended with fitness, we would continue to investigate fresh complaints but hold them for consideration if the attorney sought reinstatement.

Here, it makes sense to have completed case two, which upped the ante from suspension to disbarment. The attorney did not help his cause by ignoring the disciplinary process. (Mike Frisch)

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