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book image New York Attorney Discipline: Practice and Procedure 2015
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Author Name HAL R. LIEBERMAN
J. RICHARD SUPPLE
HARVEY PRAGER
610 Pages  
Published date 2014
ISBN no. 978-1-57625-871-2
eBook ISBN no. 978-1-57625-872-9
Condition New
 
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Title
Preface
About the Authors
Acknowledgments
Chapter 1: Unique Nature of Attorney Discipline in New York
1-1 INTRODUCTION
1-2 LEGISLATIVE AUTHORITY TO REGULATE ATTORNEYS
1-3 JUDICIAL SUPERVISION OF ATTORNEY REGULATION
1-4 VARIED LOCAL RULES OF PROCEDURE
1-5 GENERAL FUND
Chapter 2: Function of the Attorney Disciplinary and Grievance Committees
2-1 BACKGROUND
2-2 BIENNIAL REGISTRATION AND THE OFFICE OF COURT ADMINISTRATION
2-2:1 Uniform Registration Requirements
2-2:2 Office of Court Administration’s Role
2-3 AUTHORITY TO REGULATE THE PRACTICE OF LAW
2-3:1 New York Judiciary Law, Section 90
2-3:2 The Rules of the Four Appellate Divisions
2-3:3 Authority Delegated to New York Disciplinary Agencies
2-3:4 Role of the Character and Fitness Committees
2-3:4.1 Introduction
2-3:4.1a Bar Admission
2-3:4.1b Reinstatement
Chapter 3: Disciplinary Sanctions
3-1 THE PURPOSE OF DISCIPLINE
3-1:1 Generally
3-1:2 Appropriate Amount of Discipline Is Fact Dependent
3-2 TYPES OF DISCIPLINE
3-2:1 Public Discipline
3-2:1.1 Introduction
3-2:1.2 Disbarment
3-2:1.3 Suspension
3-2:1.4 Public Censure
3-2:1.5 Probation
3-2:2 Private Discipline
Chapter 4: Structure of the New York Attorney Disciplinary System
4-1 INTRODUCTION
4-2 COURTS
4-3 COMMITTEES
4-3:1 Introduction
4-3:2 First Department
4-3:3 Second Department
4-3:4 Third Department
4-3:5 Fourth Department
4-4 PROFESSIONAL STAFF
4-5 REFEREES AND HEARING PANELS
4-5:1 Introduction
4-5:2 First Department
4-5:3 Second Department
4-5:4 Third Department
4-5:5 Fourth Department
Chapter 5: Preliminary Matters; Investigations
5-1 JURISDICTION; TRANSFER TO ANOTHER DEPARTMENT
5-1:1 Introduction
5-1:2 Jurisdictional Rules
5-1:2.1 First Department
5-1:2.2 Second Department
5-1:2.3 Third Department
5-1:2.4 Fourth Department
5-1:2.5 Case Law
5-2 SCOPE OF INVESTIGATION
5-3 THE INITIAL COMPLAINT, PRELIMINARY SCREENING, ANSWER, REPLY
5-3:1 Complaint
5-3:2 Preliminary Screening
5-3:3 Answer
5-3:4 Reply
5-3:5 Cooperation
5-4 SUBPOENA POWER; DEPOSITIONS; FIFTH AMENDMENT
5-5 CONFIDENTIALITY – JUDICIARY LAW, § 90(10)
5-5:1 Confidentiality
5-5:2 Waiver
5-6 DISMISSAL OR DEFERRAL; RECONSIDERATION
5-6:1 Introduction
5-6:2 First Department
5-6:2.1 Dismissal
5-6:2.2 Reconsideration
5-6:2.3 Deferral
5-6:3 Second Department
5-6:3.1 Dismissal
5-6:3.2 Reconsideration
5-6:3.3 Deferral
5-6:4 Third Department
5-6:4.1 Dismissal
5-6:4.2 Reconsideration
5-6:4.3 Deferral
5-6:5 Fourth Department
5-6:5.1 Dismissal
5-6:5.2 Reconsideration
5-6:5.3 Deferral
5-7 REFERRAL FOR MEDIATION (22 NYCRR PART 1220)
5-7:1 Introduction
5-7:2 Mediation Panels
5-7:3 Mediation Procedure
5-7:4 Mediation Report
5-7:5 Limited Confidentiality
5-7:6 Outcome of the Mediation Process
5-8 DIVERSION
5-8:1 Introduction
5-8:2 Second, Third and Fourth Departments
5-8:3 First Department
5-9 IMMUNITY
5-10 COMPLAINT AGAINST STAFF, COMMITTEE MEMBERS
Chapter 6: Private Reprimands and Informal Discipline
6-1 INTRODUCTION
6-2 REPRIMANDS
6-2:1 Generally
6-2:2 Reprimands in the First Department
6-2:3 Reprimands in the Second Department
6-3 INFORMAL DISCIPLINE
6-3:1 First Department
6-3:1.1 Admonition
6-3:1.1a Definition
6-3:1.1b Process
6-3:1.1c Appellate Remedies
6-3:1.2 Letter of Dismissal With Guidance
6-3:1.2a Definition
6-3:1.2b Process
6-3:1.2c Appellate Remedies
6-3:2 Second Department
6-3:2.1 Admonition
6-3:2.1a Definition
6-3:2.1b Process
6-3:2.1c Appellate Remedies
6-3:2.2 Letter of Caution
6-3:2.2a Definition
6-3:2.2b Process
6-3:2.2c Appellate Remedies
6-3:3 Third Department
6-3:3.1 Admonition
6-3:3.1a Definition
6-3:3.1b Process
6-3:3.1c Appellate Remedies
6-3:3.2 Letter of Caution
6-3:3.2a Definition
6-3:3.2b Process
6-3:3.2c Appellate Remedies
6-3:3.3 Letter of Education
6-3:3.3a Definition
6-3:3.3b Process
6-3:3.3c Appellate Remedies
6-3:4 Fourth Department
6-3:4.1 Admonition
6-3:4.1a Definition
6-3:4.1b Process
6-3:4.1c Appellate Remedies
6-3:4.2 Letter of Caution
6-3:4.2a Definition
6-3:4.2b Process
6-3:4.2c Appellate Remedies
6-4 FUTURE USE OF INFORMAL DISCIPLINE
Chapter 7: Formal Proceedings
7-1 INTRODUCTION
7-2 INSTITUTION OF FORMAL PROCEEDINGS
7-2:1 Approval of Formal Charges
7-2:1.1 Generally
7-2:1.2 First Department
7-2:1.3 Second Department
7-2:1.4 Third Department
7-2:1.5 Fourth Department
7-2:2 Form of the Notice
7-2:2.1 First Department
7-2:2.2 Second Department
7-2:2.3 Third Department
7-2:2.4 Fourth Department
7-2:3 Notice
7-2:3.1 Generally
7-2:3.2 First Department
7-2:3.3 Second Department
7-2:3.4 Third Department
7-2:3.5 Fourth Department
7-3 ANSWER
7-3:1 First Department
7-3:2 Second Department
7-3:3 Third Department
7-3:4 Fourth Department
7-4 DEFAULT
7-5 LIMITED DISCOVERY
7-6 PREHEARING CONFERENCES; STIPULATIONS
7-7 MOTIONS
7-7:1 Open-ended Motion Practice
7-7:2 Procedural Rules Concerning Motions
7-7:2.1 First Department
7-7:2.2 Second Department
7-7:2.3 Third Department
7-7:2.4 Fourth Department
7-8 HEARINGS
7-8:1 Introduction
7-8:2 Rules of Evidence
7-8:3 Standard of Proof
7-8:4 Bifurcation
7-8:5 Fifth Amendment Privilege
7-8:6 Evidence in Aggravation and Mitigation
7-8:7 Character Testimony
7-8:8 Post-hearing Matters
7-8:9 Referee’s Report
7-9 APPELLATE REVIEW
7-9:1 Proceedings Before the Hearing Panel (First Department Only)
7-9:1.1 Generally
7-9:1.2 Dismissal
7-9:1.3 Reprimand
7-9:1.4 Referral to the Court
7-9:2 Review by the Appellate Divisions
7-9:2.1 Generally
7-9:2.2 Sanction Recommendations by the Fact-Finder
7-9:2.3 The Right to Advocate Before the Court
7-9:2.4 The Appellate Division’s Imposition of a Sanction
7-9:3 Review by the New York Court of Appeals
7-9:4 Review by the U.S. Supreme Court or the Federal Courts
7-9:4.1 Review by the U.S. Supreme Court
7-9:4.2 Review by the Federal Courts
Chapter 8: Special Proceedings and Issues
8-1 “PLEA BARGAINING”
8-2 DISCIPLINE OF LAW FIRMS
8-3 RESIGNATION (IN LIEU OF DISBARMENT)
8-4 INTERIM SUSPENSION
8-4:1 Introduction
8-4:2 Matter of Padilla
8-4:3 Rule Distinctions among the Four Departments
8-4:4 Matter of Russakoff
8-4:5 Disbarment on Default Following an Interim Suspension
8-5 CRIMINAL CONVICTIONS
8-5:1 Generally
8-5:2 Automatic Felony Disbarment
8-5:2.1 Introduction
8-5:2.2 Historical Background
8-5:2.3 Three Categories of Felonies
8-5:3 "Serious Crime" Proceddings
8-5:3.1 Generally
8-5:3.2 Appellate Division Rules Concerning “Serious Crimes”
8-5:3.3 Relevant Case Law
8-5:4 Other Crimes
8-6 RECIPROCAL DISCIPLINE
8-6:1 Introduction
8-6:2 Reciprocal Discipline Rules
8-6:2.1 First Department
8-6:2.2 Second Department
8-6:2.3 Third Department
8-6:2.4 Fourth Department
8-6:3 Home State Theory
8-6:4 Discipline Not Ordinarily Imposed in New York
8-6:5 Downward Departures
8-6:6 Upward Departures
8-6:7 Federal Courts as “Foreign Jurisdictions”
8-6:8 Reciprocal Discipline Reversed: Do Foreign Jurisdictions Impose Reciprocal Discipline Based on New York Determinations Despite New York’s Lower Standard of Proof?
8-7 COLLATERAL ESTOPPEL
8-7:1 Introduction
8-7:2 The Test for Collateral Estoppel
8-7:3 Identity of Issues
8-7:3.1 Factors in the Determination of Issue Identity
8-7:3.2 Examples of the Examination Into Issue Identity
8-7:4 Full and Fair Opportunity to Litigate
8-7:4.1 Factors in the Determination of Fairness
8-7:4.2 An Example of a Full and Fair Opportunity to Litigate
8-7:5 Exercise of Discretion
8-7:6 Collateral Estoppel Procedure
8-8 APPOINTMENT OF RECEIVER
8-8:1 Introduction
8-8:2 Interim Suspension
8-8:3 Incapacitated Attorneys
8-9 LACHES
Chapter 9: Post-Disciplinary Issues
9-1 EFFECTIVE DATE OF DISCIPLINARY ORDER
9-2 DUTIES OF DISCIPLINED ATTORNEY
9-2:1 Introduction
9-2:2 Compliance with the Judiciary Law
9-2:2.1 Generally
9-2:2.2 Judiciary Law § 478
9-2:2.3 Judiciary Law § 479
9-2:2.4 Judiciary Law § 484
9-2:2.5 Judiciary Law § 486
9-2:3 Compensation
9-2:4 Notice to Clients Not Involved in Litigation
9-2:5 Notice to Clients Involved in Litigation
9-2:6 Conduct After Entry of Order
9-2:7 Filing Proof of Compliance and Attorney’s Address
9-2:8 Required Records
9-3 DUTIES OF AFFILIATED ATTORNEYS
9-4 CONTEMPT PROCEEDINGS FOR THE UNAUTHORIZED PRACTICE OF LAW
9-5 THE CLIENT PROTECTION PROGRAM
9-6 REINSTATEMENT
9-6:1 Introduction
9-6:2 Reinstatement Rules
9-6:2.1 Required Showing
9-6:2.2 Similarity of Departmental Rules
9-6:2.3 Rule Variations
9-6:2.4 Reinstatement Application Forms
9-6:2.5 Judicial Determinations on Reinstatement Applications
Chapter 10: Discipline in New York Federal Courts
10-1 JUDICIAL AUTHORITY TO DISCIPLINE ATTORNEYS
10-2 THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
10-2:1 Generally
10-2:2 The Grievance Panel and the Committee on Admissions and Grievances
10-2:3 Reciprocal Suspension or Disbarment
10-2:4 Attorney Convicted of a Crime
10-3 NEW YORK’S FEDERAL DISTRICT COURTS
10-3:1 Introduction
10-3:2 Joint Local Rule of the United States District Courts for the Southern and Eastern Districts of New York
10-3:2.1 Generally
10-3:2.2 Grounds for Discipline
10-3:2.3 Types of Discipline
10-3:2.4 Reciprocal Discipline
10-3:2.5 Discipline for Cause
10-3:2.6 Reinstatement
10-3:2.7 Remedies for Misconduct
10-3:2.8 Notice to Other Courts
10-3:3 Local Rule for the United States District Court for the Northern District of New York
10-3:3.1 Introduction
10-3:3.2 Reciprocal Discipline
10-3:3.3 Discipline for Cause
10-3:4 Local Rule for the United States District Court for the Western District of New York
10-3:4.1 Introduction
10-3:4.2 Felony Convictions
10-3:4.3 Reciprocal Discipline
10-3:4.4 Reinstatement
Appendix A: New York Judiciary Law § 90
Appendix B: New York State Supreme Court, Appellate Division: First Department
Appendix C: New York State Supreme Court, Appellate Division: Second Department
Appendix D: New York State Supreme Court, Appellate Division: Third Department
Appendix E: New York State Supreme Court, Appellate Division: Fourth Department
Appendix F: Rules of the Chief Administrative Judge—Part 130. Costs and Sanctions
Appendix G: Rules of the Court of Appeals for the Licensing of Legal Consultants—Part 521
Appendix H: Rules of the Court of Appeals for the Registration of In-House Counsel—Part 522
Appendix I: Official Compilation of Codes, Rules and Regulations of the State of New York—Part 1220
Appendix J: Official Compilation of Codes, Rules and Regulations of the State of New York—Part 1230
Appendix K: Local Rules of the United States District Courts for the Southern and Eastern Districts of New York, Local Civil Rule 1.5—Discipline of Attorneys
Appendix L: Local Rules of the United States District Court for the Western District of New York, Local Civil Rule 83.3—Discipline of Attorneys
Appendix M: Local Rules of the United States District Court for the Northern District of New York, Local Civil Rule 83.4—Discipline of Attorneys
Table of Cases
Index
Back Page
 
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