N.Y. Judiciary Law § 90: Admission to and removal from practice by appellate division; character committees

§ 90. Admission to and removal from practice by appellate division;

character committees. 1. a. Upon the state board of law examiners

certifying that a person has passed the required examination, or that

the examination has been dispensed with, the appellate division of the

supreme court in the department to which such person shall have been

certified by the state board of law examiners, if it shall be satisfied

that such person possesses the character and general fitness requisite

for an attorney and counsellor-at-law and has satisfied the requirements

of section 3-503 of the general obligations law, shall admit him to

practice as such attorney and counsellor-at-law in all the courts of

this state, provided that he has in all respects complied with the rules

of the court of appeals and the rules of the appellate divisions

relating to the admission of attorneys.

b. Upon the application, pursuant to the rules of the court of

appeals, of any person who has been admitted to practice law in another

state or territory or the District of Columbia of the United States or

in a foreign country, to be admitted to practice as an attorney and

counsellor-at-law in the courts of this state without taking the regular

bar examination, the appellate division of the supreme court, if it

shall be satisfied that such person is currently admitted to the bar in

such other jurisdiction or jurisdictions, that at least one such

jurisdiction in which he is so admitted would similarly admit an

attorney or counsellor-at-law admitted to practice in New York state to

its bar without examination and that such person possesses the character

and general fitness requisite for an attorney and counsellor-at-law and

has satisfied the requirements of section 3-503 of the general

obligations law, shall admit him to practice as such attorney and

counsellor-at-law in all the courts of this state, provided, that he has

in all respects complied with the rules of the court of appeals and the

rules of the appellate divisions relating to the admission of attorneys.

Such application, which shall conform to the requirements of section

3-503 of the general obligations law, shall be submitted to the

appellate division of the supreme court in the department specified in

the rules of the court of appeals.

c. The members of the committee appointed by the appellate division in

each department to investigate the character and fitness of applicants

for admission to the bar, shall be entitled to their necessary

traveling, hotel and other expenses, incurred in the performance of

their duties, payable by the state out of moneys appropriated therefor,

upon certificate of the presiding justice of the appellate division by

which such committee is appointed.

d. The committee on character and fitness appointed by the appellate

division of the supreme court in the first judicial department and the

committee on character and fitness appointed by the appellate division

of the supreme court of the second judicial department, may each, with

the written consent of the justices of each of such appellate divisions

or a majority of such justices, acting for their respective appellate

divisions, from time to time, appoint and remove a secretary,

stenographers and assistants, and procure a suitable office for each

committee, properly furnished and equipped and all books, stationery,

blanks, postal cards, expressage and postage stamps as shall be required

for the proper performance of the duties of each such committee.

e. The salaries of such secretary, stenographers and assistants shall

be fixed for each department by the justices of the appellate division

in each department or a majority of them in each department.

f. The salaries of such secretary, stenographers and assistants and

the necessary expenses under the terms of this act in the first judicial

department, shall, in the said first judicial department, be paid by the

comptroller of the city of New York.

g. The salaries of such secretary, stenographers and assistants and

the necessary expenses under the terms of this act in the second

judicial department shall be certified by the presiding justice of such

department to the state comptroller who shall audit the same. The state

department of taxation and finance shall pay such salaries and expenses

and shall apportion the same among the counties comprising the second

judicial department. Such counties shall reimburse the state for such

compensation. The time and method of such apportionment and the time and

method of such reimbursement shall be as specified in section

seventy-four of this chapter.

2. The supreme court shall have power and control over attorneys and

counsellors-at-law and all persons practicing or assuming to practice

law, and the appellate division of the supreme court in each department

is authorized to censure, suspend from practice or remove from office

any attorney and counsellor-at-law admitted to practice who is guilty of

professional misconduct, malpractice, fraud, deceit, crime or

misdemeanor, or any conduct prejudicial to the administration of

justice; and the appellate division of the supreme court is hereby

authorized to revoke such admission for any misrepresentation or

suppression of any information in connection with the application for

admission to practice.

It shall be the duty of the appellate division to insert in each order

of suspension or removal hereafter rendered a provision which shall

command the attorney and counsellor-at-law thereafter to desist and

refrain from the practice of law in any form, either as principal or as

agent, clerk or employee of another. In addition it shall forbid the

performance of any of the following acts, to wit:

a. The appearance as an attorney or counsellor-at-law before any

court, judge, justice, board, commission or other public authority.

b. The giving to another of an opinion as to the law or its

application, or of any advice in relation thereto.

In case of suspension only, the order may limit the command to the

period of time within which such suspension shall continue, and if

justice so requires may further limit the scope thereof.

If an attorney and counsellor-at-law has been heretofore removed from

office, the appellate division shall upon application of any attorney

and counsellor-at-law, or of any incorporated bar association, and upon

such notice to the respondent as may be required, amend the order of

removal by adding thereto as a part thereof, provisions similar to those

required to be inserted in orders hereafter made.

If a certified copy of such order or of such amended order, be served

upon the attorney and counsellor-at-law suspended or removed from

office, a violation thereof may be punished as a contempt of court.

2-a. a. The provisions of this subdivision shall apply in all cases of

an attorney licensed, registered or admitted to practice in this state

who has failed after receiving appropriate notice, to comply with a

summons, subpoena or warrant relating to a paternity or child support

proceeding involving him or her personally, or who is in arrears in

payment of child support or combined child and spousal support which

matter shall be referred to the appropriate appellate division by a

court pursuant to the requirements of section two hundred forty-four-c

of the domestic relations law or pursuant to section four hundred

fifty-eight-b or five hundred forty-eight-b of the family court act.

b. Upon receipt of an order from the court based on arrears in payment

of child support or combined child and spousal support pursuant to one

of the foregoing provisions of law, the appropriate appellate division

within thirty days of receipt of such order, if it finds such person to

be so licensed, registered or admitted, shall provide notice to such

attorney of, and initiate, a hearing which shall be held by it at least

twenty days and no more than thirty days after the sending of such

notice to the attorney. The hearing shall be held solely for the purpose

of determining whether there exists as of the date of the hearing proof

that full payment of all arrears of support established by the order of

the court to be due from the licensed, registered or admitted attorney

have been paid. Proof of such payment shall be a certified check showing

full payment of established arrears or a notice issued by the court or

the support collection unit where the order is payable to the support

collection unit designated by the appropriate social services district.

Such notice shall state that full payment of all arrears of support

established by the order of the court to be due have been paid. The

licensed attorney shall be given full opportunity to present such proof

of payment at the hearing in person or by counsel. The only issue to be

determined as a result of the hearing is whether the arrears have been

paid. No evidence with respect to the appropriateness of the court order

or ability of the respondent party in arrears to comply with such order

shall be received or considered by the disciplinary committee.

c. Upon receipt of an order from the court based on failure to comply

with a summons, subpoena, or warrant relating to a paternity or child

support proceeding, the appropriate appellate division within thirty

days of receipt of such order, if it finds such person to be so

licensed, registered or admitted, shall provide notice to such attorney

that his or her license shall be suspended within sixty days of such

notice to the attorney unless the conditions in paragraph e of this

section are met.

d. Notwithstanding any inconsistent provision of this section or of

any other provision of law to the contrary, the license to practice law

in this state of an attorney admitted to practice shall be suspended by

the appellate division if, at the hearing provided for by paragraph b of

this subdivision, the licensed attorney fails to present proof of

payments as required by such subdivision. Such suspension shall not be

lifted unless the original court or the support collection unit, where

the court order is payable to the support collection unit designated by

the appropriate social services district, issues notice to the appellate

division that full payment of all arrears of support established by the

order of the original court to be due have been paid.

e. Notwithstanding any inconsistent provision of this section or of

any other provision of law to the contrary, the license of an attorney

admitted to practice law in this state shall be suspended by the

appellate division, in accordance with paragraph c of this subdivision

unless the court terminates its order to commence suspension

proceedings. Such suspension shall not be lifted unless the court issues

an order to the appellate division terminating its order to commence

suspension proceedings.

f. The appellate division shall inform the original court of all

actions taken hereunder.

g. This subdivision two-a applies to paternity and child support

proceedings commenced under, and support obligations paid pursuant to

any order of child support or child and spousal support issued under

provisions of section two hundred thirty-six or two hundred forty of the

domestic relations law, or article four, five, five-A or five-B of the

family court act.

h. Notwithstanding any inconsistent provision of this section or of

any other provision of law to the contrary, the provisions of this

subdivision two-a shall apply to the exclusion of any other requirements

of this section and to the exclusion of any other requirement of law to

the contrary.

2-b. Notwithstanding any general or special law or rule or regulation

to the contrary, no attorney licensed in this state may be removed or

otherwise subject to discipline, including reprimand, censure, monetary

fine, or the revocation, suspension, or cancellation of the attorney's

license, for advising or representing a client or prospective client

related to reproductive health care or gender-affirming care, as defined

by section 570.17 of the criminal procedure law, if the sole reason for

such removal or discipline is that (i) the client offered, provided,

facilitated, or received reproductive health care or gender-affirming

care that is unlawful in another state; (ii) another state's laws create

actual or potential liability for the reproductive health care or

gender-affirming care offered, provided, facilitated, or received by the

client; or (iii) the attorney is subject to actual or potential

liability, removal, or discipline in another jurisdiction based on the

reproductive health care or gender-affirming care offered, provided,

facilitated, or received by their client, so long as the attorney's

conduct complies with the laws of this state and meets the standards set

forth in the Rules of Professional Conduct promulgated by the judicial

departments of the appellate division of the New York state supreme

court.

3. The suspension or removal of an attorney or counsellor-at-law, by

the appellate division of the supreme court, operates as a suspension or

removal in every court of the state.

4. a. Any person being an attorney and counsellor-at-law who shall be

convicted of a felony as defined in paragraph e of this subdivision,

shall upon such conviction, cease to be an attorney and

counsellor-at-law, or to be competent to practice law as such.

b. Whenever any attorney and counsellor-at-law shall be convicted of a

felony as defined in paragraph e of this subdivision, there may be

presented to the appellate division of the supreme court a certified or

exemplified copy of the judgment of such conviction, and thereupon the

name of the person so convicted shall, by order of the court, be struck

from the roll of attorneys.

c. Whenever an attorney shall be convicted of a crime in a court of

the United States or of any state, territory or district, including this

state, whether by a plea of guilty or nolo contendere or from a verdict

after trial or otherwise, the attorney shall file, within thirty days

thereafter, with the appellate division of the supreme court, the record

of such conviction.

The failure of the attorney to so file shall be deemed professional

misconduct provided, however, that the appellate division may upon

application of the attorney, grant an extension upon good cause shown.

d. For purposes of this subdivision, the term serious crime shall mean

any criminal offense denominated a felony under the laws of any state,

district or territory or of the United States which does not constitute

a felony under the laws of this state, and any other crime a necessary

element of which, as determined by statutory or common law definition of

such crime, includes interference with the administration of justice,

false swearing, misrepresentation, fraud, willful failure to file income

tax returns, deceit, bribery, extortion, misappropriation, theft, or an

attempt or conspiracy or solicitation of another to commit a serious

crime.

e. For purposes of this subdivision, the term felony shall mean any

criminal offense classified as a felony under the laws of this state or

any criminal offense committed in any other state, district, or

territory of the United States and classified as a felony therein which

if committed within this state, would constitute a felony in this state.

f. Any attorney and counsellor-at-law convicted of a serious crime, as

defined in paragraph d of this subdivision, whether by plea of guilty or

nolo contendere or from a verdict after trial or otherwise, shall be

suspended upon the receipt by the appellate division of the supreme

court of the record of such conviction until a final order is made

pursuant to paragraph g of this subdivision.

Upon good cause shown the appellate division of the supreme court may,

upon application of the attorney or on its own motion, set aside such

suspension when it appears consistent with the maintenance of the

integrity and honor of the profession, the protection of the public and

the interest of justice.

g. Upon a judgment of conviction against an attorney becoming final

the appellate division of the supreme court shall order the attorney to

show cause why a final order of suspension, censure or removal from

office should not be made.

h. If the attorney requests a hearing, the appellate division of the

supreme court shall refer the proceeding to a referee, justice or judge

appointed by the appellate division for hearing, report and

recommendation.

After said hearing, the appellate division may impose such discipline

as it deems proper under the facts and circumstances.

5. a. If such removal or debarment was based upon conviction for a

serious crime or upon a felony conviction as defined in subdivision four

of this section, and such felony conviction was subsequently reversed or

pardoned by the president of the United States, or governor of this or

another state of the United States, the appellate division shall have

power to vacate or modify such order or debarment, provided, however,

that if such attorney or counsellor-at-law has been removed from

practice in another jurisdiction, a pardon in said jurisdiction shall

not be a basis for application for re-admission in this jurisdiction

unless he shall have been readmitted in the jurisdiction where pardoned.

b. If such removal or debarment was based upon conviction for a felony

as defined in subdivision four of this section, the appellate division

shall have power to vacate or modify such order or debarment after a

period of seven years provided that such person has not been convicted

of a crime during such seven-year period.

c. An attorney and counsellor-at-law who has been convicted of a

felony without the state and whose name has been struck from the roll of

attorneys prior to July thirteenth, nineteen hundred seventy-nine by

virtue of the provisions of subdivision four of this section may, if he

alleges that such felony committed without the state would not

constitute a felony if committed within the state, petition the

appellate division to vacate or modify such debarment. If the appellate

division finds that the felony of which the attorney and

counsellor-at-law has been convicted without the state would not

constitute a felony if committed within the state, it shall grant a

hearing and may retroactively vacate or modify such debarment and impose

such discipline as it deems just and proper under the facts and

circumstances.

The attorney and counsellor-at-law shall petition for reinstatement by

filing in the appellate division a copy of the order of removal together

with a request for a hearing pursuant to the provisions of this

paragraph. Upon such application, the order of removal shall be deemed

an order of suspension for the purposes of a proceeding pursuant to this

paragraph.

6. Before an attorney or counsellor-at-law is suspended or removed as

prescribed in this section, a copy of the charges against him must be

delivered to him personally within or without the state or, in case it

is established to the satisfaction of the presiding justice of the

appellate division of the supreme court to which the charges have been

presented, that he cannot with due diligence be served personally, the

same may be served upon him by mail, publication or otherwise as the

said presiding justice may direct, and he must be allowed an opportunity

of being heard in his defense. In all cases where the charges are served

in any manner other than personally, and the attorney and

counsellor-at-law so served does not appear, an application may be made

by such attorney or in his behalf to the presiding justice of the

appellate division of the supreme court to whom the charges were

presented at any time within one year after the rendition of the

judgment, or final order of suspension or removal, and upon good cause

shown and upon such terms as may be deemed just by such presiding

justice, such attorney and counsellor-at-law must be allowed to defend

himself against such charges.

The justices of the appellate division in any judicial department, or

a majority of them, may make an order directing the expenses of any

disciplinary proceedings, and the necessary costs and disbursements of

the petitioner in prosecuting such charges, including the expense of any

preliminary investigation in relation to professional conduct of an

attorney and counsellor-at-law, to be paid out of funds appropriated to

the office of court administration for that purpose.

6-a. a. Where the appellate division of supreme court orders the

censure, suspension from practice or removal from office of an attorney

or counsellor-at-law following disciplinary proceedings at which it

found, based upon a preponderance of the legally admissible evidence,

that such attorney or counsellor-at-law wilfully misappropriated or

misapplied money or property in the practice of law, its order may

require him or her to make monetary restitution in accordance with this

subdivision. Its order also may require that he or she reimburse the

lawyers' fund for client protection of the state of New York for awards

made to the person whose money or property was wilfully misappropriated

or misapplied.

b. Monetary restitution, as authorized hereunder, shall be made to the

person whose money or property was wilfully misappropriated or

misapplied and shall be for the amount or value of such money or

property, as found in the disciplinary proceedings. In the event that

such person dies prior to completion of such restitution, any amount

remaining to be paid shall be paid to the estate of the deceased.

c. Any payment made as restitution pursuant to this subdivision shall

not limit, preclude or impair any liability for damages in any civil

action or proceeding for an amount in excess of such payment; nor shall

any order of the appellate division made hereunder deprive a criminal

court of any authority pursuant to article sixty of the penal law.

d. An order issued pursuant to this subdivision may be entered as a

civil judgment. Such judgment shall be enforceable as a money judgment

in any court of competent jurisdiction by any person to whom payments

are due thereunder, or by the lawyers' fund for client protection where

it has been subrogated to the rights of such person.

e. Where an attorney or counsellor-at-law is permitted to resign from

office, the appellate division may, if appropriate, issue an order as

provided herein requiring him or her to make payments specified by this

subdivision.

f. Notwithstanding any other provision of this subdivision, no order

may be issued hereunder unless the person required to make payments

under such order first is given an opportunity to be heard in opposition

thereto.

7. In addition to the duties prescribed by section seven hundred of

the county law, it shall be the duty of any district attorney within a

department, when so designated by the justices of the appellate division

of the supreme court in such department, or a majority of them, to

prosecute all proceedings for the removal or suspension of attorneys and

counsellors-at-law or the said justices, or a majority of them may

appoint any attorney and counsellor-at-law to conduct a preliminary

investigation and to prosecute any disciplinary proceedings and, during

or upon the termination of the investigation or proceedings, may fix the

compensation to be paid to such attorney and counsellor-at-law for the

services rendered, which compensation shall be a charge against the

county specified in his certificate and shall be paid thereon.

8. Any petitioner or respondent in a disciplinary proceeding against

an attorney or counsellor-at-law under this section, including a bar

association or any other corporation or association, shall have the

right to appeal to the court of appeals from a final order of any

appellate division in such proceeding upon questions of law involved

therein, subject to the limitations prescribed by section three of

article six of the constitution of this state.

9. No objection shall be taken to the appointment of any member of the

bar to act as referee or judge in a disciplinary proceeding under this

section on the ground that he is a member of a bar association or other

corporation or association which is the petitioner therein.

10. Any statute or rule to the contrary notwithstanding, all papers,

records and documents upon the application or examination of any person

for admission as an attorney and counsellor at law and upon any

complaint, inquiry, investigation or proceeding relating to the conduct

or discipline of an attorney or attorneys, shall be sealed and be deemed

private and confidential. However, upon good cause being shown, the

justices of the appellate division having jurisdiction are empowered, in

their discretion, by written order, to permit to be divulged all or any

part of such papers, records and documents. In the discretion of the

presiding or acting presiding justice of said appellate division, such

order may be made either without notice to the persons or attorneys to

be affected thereby or upon such notice to them as he may direct. In

furtherance of the purpose of this subdivision, said justices are also

empowered, in their discretion, from time to time to make such rules as

they may deem necessary. Without regard to the foregoing, in the event

that charges are sustained by the justices of the appellate division

having jurisdiction in any complaint, investigation or proceeding

relating to the conduct or discipline of any attorney, the records and

documents in relation thereto shall be deemed public records.