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Supreme Court of the State of New York
APPELLATE DIVISION
Fourth Judicial Department

Notice:

Effective October 1, 2016, the Appellate Division, Fourth Department, repealed 22 NYCRR part 1022, which formerly governed attorney admissions, procedures in attorney disciplinary matters, and certain attorney conduct in the Fourth Department. To replace part 1022, the Fourth Department enacted 22 NYCRR part 1015, which governs attorney admissions and certain attorney conduct, and 22 NYCRR part 1020, which governs procedures in attorney disciplinary matters in the Fourth Department. Part 1020 should be read in conjunction with recently enacted 22 NYCRR part 1240, which governs procedures in attorney disciplinary matters in all Departments of the Appellate Division. On September 29, 2016, the Presiding Justices of the Appellate Division signed a joint order directing that, unless otherwise ordered by the Court, 22 NYCRR part 1240 shall apply to each disciplinary investigation or proceeding pending before the grievance committees or in the Appellate Division on October 1, 2016.


Jurisdiction of Appellate Division

The authority to censure, suspend, or remove from office an attorney and counselor-at-law is vested exclusively in the Appellate Division (Judiciary Law § 90 [2]).



Attorney Grievance Plan

The Court has appointed an attorney grievance committee for each of the three judicial districts in the Fourth Department to investigate alleged professional misconduct by attorneys in the Fourth Department (22 NYCRR 1020.2).



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Charges of Professional Misconduct

When an attorney grievance committee has determined that there is probable cause to believe that an attorney has committed professional misconduct, a petition containing charges of misconduct may be filed in the Appellate Division (22 NYCRR 1020.7)

Chief Counsel to the grievance committees must file an original petition and notice of petition, together with five copies thereof and proof of service on the attorney who is the subject of the proceeding. The petition must be made returnable on the last Tuesday of a scheduled term of the Court. The petition must be filed at least 30 days prior to the return date (22 NYCRR 1020.8 [a]).



Responding to Charges

Answer

The respondent attorney must file a verified answer, five copies thereof and proof of service on counsel for the attorney grievance committee within 20 days of service of the petition. The answer must contain, with respect to each paragraph of the petition, specific admissions or denials (CPLR 3020; 22 NYCRR 1020.8 [b]).

Default

In the event the respondent fails to file an answer within the specified time period, Chief Counsel may move for an order finding the respondent in default, deeming admitted the allegations in the petition, and suspending the respondent during the pendency of the proceeding (22 NYCRR 1020.8 [c]).



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Denial of Material Allegations

When a respondent, in the answer, denies material allegations of the petition, the Court may refer the matter for a hearing (22 NYCRR 1020.8 [d]) or direct the attorney to appear to clarify the status of the pleadings. If the matter is referred for a hearing, a copy of the order of reference is sent to the parties.



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No Material Factual Issues

When a respondent, in the answer, admits the material factual allegations of the petition, the Court will schedule an appearance for the respondent to be heard in mitigation of the charges. The respondent may submit written materials in mitigation prior to the appearance. The respondent may waive in writing the opportunity to appear (22 NYCRR 1020.8 [f], [g]).



Request for Adjournments or Extensions of Time

Once a proceeding has been commenced in the Appellate Division, only the Court may adjourn the matter or extend the deadline for pleadings and other papers. Requests for adjournments or extensions must be made in advance of any scheduled appearance or deadline, in writing, and directed to the Presiding Justice, care of the Clerk of the Court, with a copy to counsel for the attorney grievance committee. Court staff will notify the parties of the Court's determination of any such request.



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Appearance Following Hearing

Following the completion of a hearing and the filing of a report by a referee, the Court will schedule an appearance for argument of motions by the parties and to afford the respondent attorney an opportunity to be heard in mitigation. The respondent attorney may waive in writing the opportunity to appear (22 NYCRR 1020.8 [f]).



Motions

Oral argument of motions in disciplinary matters is not permitted unless otherwise directed by the Court (22 NYCRR 1020.8 [h]). The Court generally permits oral argument of: motions directed to a referee's report (motions to confirm, disaffirm, or dismiss charges); motions for immediate suspension; or motions for orders punishing attorneys for contempt.

The Court requires that the moving party file the original motion papers, five copies thereof and proof of service on counsel for the opposing party. Motions shall be made returnable during a term of Court on the date scheduled for the Court to hear disciplinary matters. Motions shall be served with sufficient notice to all parties, as set forth in the CPLR and the rules of the Court (22 NYCRR 1020.8 [h] [2], [3]).



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Oral Argument and Other Appearances

A respondent attorney who is scheduled to appear before the Court in a disciplinary proceeding shall sign in with the Clerk's Office prior to 2:00 p.m. on the day of the scheduled appearance.

Disciplinary proceedings are conducted in the courtroom before a panel of Justices of the Appellate Division. Because the proceedings are confidential by statute (Judiciary Law § 90 [10]), the proceedings are conducted in a closed courtroom and only parties, counsel to parties and certain members of the Court's staff are permitted to be present.



Decisions

In the event that disciplinary charges against a respondent attorney are sustained by the Court, the decision is public and generally will be posted on the website maintained by the Court at 3:00 p.m. on a scheduled decision release date. Orders determining disciplinary matters are mailed to the parties.



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Resignation From Practice

An attorney who is the subject of a disciplinary investigation or proceeding may resign from the practice of law by submitting to the Court an affidavit or affirmation of resignation in the form specified in the Court's rule governing resignations for disciplinary reasons (22 NYCRR 1240.10, Appendix A), along with proof of service on counsel for the attorney grievance committee.

In the event that the Court determines that the resignation complies with the rule, a public order will be entered accepting the resignation, striking the name of the attorney from the roll of attorneys, and, when restitution is owed, directing the payment of restitution.



Reinstatement

Attorneys disbarred for misconduct or stricken from the roll pursuant to resignation or conviction of a felony, and attorneys suspended from the practice of law for misconduct, may apply for reinstatement to practice in accordance with rule 1240.16 (22 NYCRR 1240.16). Disbarred attorneys may apply for reinstatement after the expiration of seven years from the entry of the order of disbarment. Suspended attorneys may apply for reinstatement after the expiration of the period of suspension.

An application for reinstatement shall be made by motion and served with sufficient notice to all parties as set forth in the CPLR and rules of the Court (22 NYCRR 1240.16 [a]-[c]; see also 22 NYCRR 1020.8 [h]). Necessary papers in support of an application for reinstatement are listed in rule 1240.16 (22 NYCRR 1240.16 [b]) and include a completed questionnaire in the form specified in Appendix C of the Court's rule and a copy of a letter to the Lawyers Fund for Client Protection notifying the Fund that the application has been filed. An applicant for reinstatement must file the original application, five copies thereof and proof of service of one copy of the application on counsel for the attorney grievance committee. The application must additionally include a check payable to the Appellate Division, Fourth Department, in the amount of $45 in payment of the motion fee.

Attorneys applying for reinstatement following disbarment or suspension from practice for a period in excess of six months are generally required to appear before the Court on the return date of the application. Attorneys suspended for a period of six months or less generally are not required to appear and are permitted to file an abbreviated questionnaire in the form specified at Appendix D to 22 NYCRR 1240.16.

Attorneys removed from the roll of attorneys after voluntary resignation may apply for reinstatement at any time. The resigned attorney must file an application pursuant to the motion procedures set forth in 22 NYCRR 1020.8 (h), including a completed questionnaire in the form of Appendix F to 22 NYCRR 1240.16 (d). The application must also include a check payable to the Appellate Division, Fourth Department, in the amount of $45 in payment of the motion fee, and proof that one copy was served on Chief Counsel to the grievance committees.



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Diversion

When an attorney who is the subject of a disciplinary investigation or proceeding raises in defense of the charges, or as a mitigating factor, alcohol or substance abuse, or other mental or physical health issues, or, upon the recommendation of counsel to an attorney grievance committee, the Court may stay an investigation or proceeding and direct the attorney to complete a monitoring program sponsored by the New York State Bar Association Lawyer Assistance Program or an equivalent program approved by the Court (22 NYCRR 1240.11 and 1020.11).

Upon proof of successful completion of a Court-approved monitoring program, the Court may dismiss the investigation or charges. In the event the attorney fails to complete the monitoring program or engages in additional misconduct during the pendency of the proceeding, the Court may rescind the order of diversion and reinstate the investigation or charges (22 NYCRR 1240.11 [b]).

All aspects of an attorney's participation in a monitoring program through an approved lawyer assistance program and any records related thereto are confidential or privileged, pursuant to Judiciary Law §§90 (1) and 499 (22 NYCRR 1240.11 [c]).



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