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Automatic Disbarment: A Sobering Reality for Convicted Attorneys

By Kristen L. Burge, Litigation News Contributing Editor – February 17, 2017


Felony drunk driving constitutes grounds for automatic disbarment, though felony wire fraud does not, under one court's interpretation of New York's automatic disbarment law. Only crimes defined by New York law as felonies and those deemed "essentially similar" to a New York felony trigger automatic disbarment. Other jurisdictions' definitions of criminal activity, and not the nature or severity of the crime itself, will determine whether a New York attorney is immediately disbarred upon a felony conviction.


Automatic Disbarment Hinges on State Crime Analog
Douglas Sheehan was a Connecticut resident and attorney licensed in Connecticut and New York. Between September 2003 and November 2007, Sheehan engaged in fraudulent mortgage lending. A federal judge convicted Sheehan of federal conspiracy and wire fraud in 2010, but Sheehan did not notify New York of those convictions as required by law. In 2011, Sheehan pleaded guilty to felony DWI in Connecticut—his second DWI offense within 10 years.


Upon discovering Sheehan's various felony convictions, the New York Attorney Grievance Committee sought an order striking Sheehan from the attorney roll. Under New York Judiciary Law § 90(4)(a), a lawyer "who shall be convicted of a felony . . . shall upon such conviction, cease to be an attorney and counsellor-at-law, or to be competent to practice law as such." New York felonies and "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" trigger automatic disbarment. Under this law, disbarment occurs immediately by operation of law. A court merely completes the ministerial task of retroactively removing the attorney from the bar roll.


In the Matter of Sheehan, the court did not find the elements of wire fraud to be analogous to a New York felony. The court did find, however, that the Connecticut and New York DWI statutes were "essentially similar." Both statutes, the court explained, penalized operating a motor vehicle with a blood alcohol content of .08 percent or more. Both statutes also elevated a conviction to a felony when there has been a previous DWI conviction within the past 10 years. Unlike felony wire fraud, the Connecticut DWI conviction provided the necessary predicate for automatic disbarment. Accordingly, the court struck Sheehan from the attorney roll, effective as of the date of the DWI conviction.


Disbarment Not Required for "Serious Crimes"
With automatic disbarment, the nature of the underlying criminal activity does not necessarily play a factor in the severity of the disciplinary sanction. A federal or other state felony, if not defined similarly by New York's legislature, constitutes a "serious crime," which will not trigger automatic license revocation. For serious crimes, attorneys receive a full disciplinary hearing before a court imposes sanctions.


"With respect to convictions generally, the definition of a 'serious' crime or one involving 'moral turpitude' is murky, and that murkiness historically meant that the disciplinary sanction would vary from state to state or decade to decade," says Keith Swisher, cochair of the ABA Section of Litigation's Attorney Advertising Subcommittee of the Ethics & Professionalism Committee. "It is important to remember that not all crimes are created equal," notes Swisher. "Some bear less relation to a lawyer's trustworthiness or fitness to practice law. To be sure, the distinction between felonies and misdemeanors does offer a very crude way to sort crimes, but legislatures frequently label crimes with little relative thought to other crimes," says Swisher.


"Sheehan fell within the automatic disbarment rule because his 2011 DWI was labeled a felony (because he also had a 2006 DWI conviction). If these were the only facts, the automatic disbarment rule would likely have worked a harsh result. A suspension with counseling, for example, might have been sufficient to protect the public," explains Swisher. But Sheehan "had several convictions, including a fraud conviction, and he failed to respond to the disciplinary action. These are circumstances that often result in disbarment," observes Swisher.


Rigid Regulation of Legal Profession Is Less Common
The majority approach during the early twentieth century was automatic disbarment, but most jurisdictions have moved away from it, explains Basheer Ghorayeb, cochair of the Section of Litigation's Ethics & Professionalism Committee. "While some jurisdictions will still impose disbarment as a sanction for a felony conviction, they will first require a disciplinary process, which may allow the attorney to offer mitigation evidence and argue for lesser sanctions, such as a suspension of the law license," observes Ghorayeb.


Today, most states treat criminal convictions "somewhat similarly to other disciplinary violations, with two key distinctions. Proof of conviction is generally conclusive evidence of the crime and therefore the remaining issue is the appropriate level of disciplinary sanction. And at least for felonies or serious misdemeanors, an interim suspension is often imposed while the disciplinary process is pending," notes Ghorayeb. Though New York's law "might be characterized as harsh, the decision was not, as the court had no decision to make other than to recognize the fact that the attorney was disbarred," concludes Ghorayeb.


Keywords: ethics, disbarred, sanctions, attorney discipline


 
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