Fourth Department Diversion Rules
Effective January 9, 2003
§ 1022.17 Professional Misconduct Defined
A violation of any rule of the Disciplinary Rules of the Code
of Professional Responsibility as set forth in 22 NYCRR part 1200,
or any other rule or announced standard of the Appellate Division
governing the conduct of attorneys, shall constitute professional
misconduct within the meaning of Judiciary Law §90 (2).
§ 1022.18 Effect of Restitution on Disciplinary
Proceedings
The restitution by an attorney of client funds converted or misapplied
by the attorney shall not bar the commencement or continuation
of grievance or disciplinary proceedings.
§ 1022.19 Fourth Judicial
Department Grievance Plan
• Attorney Grievance
Committee Structure.
(1) There shall be an attorney grievance
committee for each judicial district in the Fourth Judicial Department.
The committees shall be composed of members recommended by the
presidents of the local bar associations in each district, and
there shall be at least one member from each county in a judicial
district.
(2) The Appellate Division shall appoint
the members of the committees, including a chairperson. An appointment
shall be for a term of three years.
A member who has completed two consecutive three-year terms shall
not be eligible for reappointment until three years after the
expiration of the second term and vacancies on the committee shall
be filled for the remainder of the unexpired term. Each committee
shall be composed of 21 members, including three nonlawyers. All
members of a committee shall reside in the respective judicial
district. Twelve members of a committee shall constitute a quorum.
Members of the committees are volunteers and are expressly authorized
to participate in a State-sponsored volunteer program, pursuant
to Public Officers Law §17 (1).
(3) A member of a current or former committee
member's law firm shall not be prohibited from representing a
respondent in a disciplinary proceeding, or during an investigation
conducted pursuant to these rules, provided that such representation
is in accordance with 22 NYCRR part 1200.45.
(b) Duties of Attorney Grievance Committee.
The attorney grievance committee shall:
(1) consider and investigate all matters
presented or referred to it by complaint or otherwise, which involve
allegations of misconduct by an attorney practicing in the respective
district;
(2) supervise staff attorneys in the
performance of their duties before the committee;
(3) appoint sub-committees to assist
in investigations when necessary and appropriate;
(4) refer cases directly to the Appellate
Division when the public interest requires prompt action or when
the matter involves an attorney who has been convicted of a felony
or a crime involving conduct that adversely reflects upon the
attorney's honesty, trustworthiness or fitness as an attorney;
and
(5) maintain and provide to the Appellate
Division statistical reports summarizing the processing and disposition
of all matters before the committee.
(c) Staff Structure.
(1) There shall be a legal staff, which
shall include a chief attorney and such staff attorney positions
as may be provided for in the State budget. Staff attorneys shall
be recommended by the committee chairpersons and appointed by
the Appellate Division. Staff attorneys shall reside within the
Fourth Department. The chief attorney may hire investigative and
clerical staff as provided for in the State budget.
(d) Duties and authority of legal staff.
(1) Investigation of complaints.
Investigation of all complaints shall be initiated by the chief
attorney and conducted by the staff attorneys. Staff attorneys
are authorized to:
(i) request from the subject
of a complaint that a written response be filed within 14 days;
a copy of the response may be provided to the complainant;
(ii) interview witnesses
and obtain any records and reports necessary to determine the
validity of a complaint;
(iii) direct the subject
of the complaint to appear before the chief attorney or a staff
attorney for a formal interview or examination under oath;
(iv) when it appears that
the examination of any person is necessary for a proper determination
of the validity of a complaint or that the production of relevant
books and papers is necessary, the chief attorney may apply to
the Clerk of the Appellate Division for a judicial subpoena to
compel the attendance of the person as a witness or the production
of relevant books and papers; the application for the subpoena
shall be supported by sufficient facts to demonstrate the relevancy
of the testimony and of any books and papers specified; subpoenas
shall be issued by the Clerk in the name of the Presiding Justice
and may be made returnable before the chief attorney or staff
attorney at a time and place specified therein; and
(v) when it appears that
a complaint involves a minor matter, such as a personality conflict
between attorney and client, a fee dispute or a delay that resulted
in no harm to the client, the staff attorney may refer the complaint,
upon notice to the attorney and the complainant, to an appropriate
committee of the local bar association.
(2) Authorized dispositions of matters
not warranting institution of formal disciplinary proceedings.
After investigation of a complaint and consultation with the
appropriate committee chairperson, the chief attorney or designated
staff attorney may:
(i) dismiss a complaint as
unfounded by letter to the complainant and subject attorney; or,
(ii) refer a complaint to
a mediation or monitoring program, pursuant to 22 NYCRR 1220.2;
or,
(iii) when it appears
that the factors set forth in 22 NYCRR 1022.20 (d) (3) (a) are
present, make a written recommendation to the Appellate Division,
on notice to the attorney who is the subject of the complaint
or investigation, that the matter under investigation be stayed
and that the attorney be diverted to a monitoring program approved
by the Appellate Division; or
(iv) when
it appears that the subject attorney has engaged in inappropriate
behavior that does not constitute professional misconduct, issue
a Letter of Caution to the attorney, with written notification
to the complainant that such action has been taken; or
(v) recommend
to the appropriate committee that a Letter of Admonition be issued
to the subject attorney. A report summarizing the matter along
with the recommendation shall be provided to the attorney. The
attorney shall be afforded the right to appear before the committee
and be heard. A Letter of Admonition shall be issued upon the
approval of a majority of the committee members present. The Letter
of Admonition shall state the nature of the inappropriate conduct
and the basis for the determination. The issuance of a Letter
of Admonition shall constitute the imposition of formal discipline.
The complainant shall receive written notification that such action
has been taken.
In the event that a majority of the committee members
decline to approve the issuance of a Letter of Admonition, the
matter may be disposed of in any manner set forth in 22 NYCRR
1022.19 (d) (2) (i), (ii) or (iv).
(3) Appeals.
(i) Appeal from Letter of
Caution. An attorney may appeal to the committee from a Letter
of Caution by filing a letter stating objections to the Letter
of Caution. The letter appeal shall be directed to the chairperson
of the appropriate district committee, and shall be served on
the chief attorney. The letter appeal shall be filed within 30
days of the date on the Letter of Caution. The chief attorney
may file a reply within 10 days of service of the letter appeal.
Oral argument of the appeal is not permitted.
(ii) Appeal from Letter of
Admonition. An attorney may appeal to the three district committee
chairpersons from a Letter of Admonition by filing a letter stating
objections to the Letter of Admonition. The letter appeal shall
be filed within 30 days of the date on the Letter of Admonition,
and shall be served on the chief attorney. The chief attorney
may file a reply within 10 days of service of the letter appeal.
Appearances on such appeals shall be within the discretion of
the committee chairpersons.
(iii) Appeal by chief attorney.
The chief attorney may appeal to the three committee chairpersons
from a committee determination declining to approve the issuance
of a Letter of Admonition by filing a letter stating objections
to the determination. The letter appeal shall be filed within
30 days of the date of the adverse determination, and shall be
served on the subject attorney. The attorney may file a reply
within 10 days of service of the letter appeal. Appearances on
such appeals shall be within the discretion of the committee chairpersons.
On appeals taken pursuant to 22 NYCRR
1022.19 (d) (3), the chairperson or chairpersons shall review
all issues raised by the complaint or complaints and the entire
record that was before the chief attorney or the committee.
(e) Duties of county and local bar associations.
A county or local bar association may review, investigate
and determine complaints against attorneys involving allegations
of minor delay that resulted in no harm to the client, fee disputes,
personality conflicts between attorney and client, and other minor
matters.
(i) The bar association shall
provide to the chief attorney, within 20 days of receipt of a
complaint, a report, in a form prescribed by the chief attorney,
a copy of the complaint and any other relevant correspondence.
(ii) When a bar association
retains jurisdiction over a complaint after notifying the chief
attorney as required by 22 NYCRR 1022.19 (e) (i), the association
shall complete its investigation and forward the file along with
a status report in a form prescribed by the chief attorney, to
the chief attorney within 60 days of the date of receipt of the
complaint. When the bar association has not reached a determination
resolving the complaint within the 60-day period, the district
committee shall assume jurisdiction of the matter. The association
may make a written request to the chief attorney for an extension
of the 60-day period.
(iii) A complaint received
by a bar association that involves a matter other than a minor
delay, fee dispute or personality conflict shall be forwarded
to the chief attorney as soon as possible and in no event more
than 20 days after receipt.
(iv) Each bar association
shall file quarterly reports on attorney grievance matters in
a form prescribed by the chief attorney. The report shall be filed
within 15 days of the end of each quarter.
§ 1022.20 Formal disciplinary proceedings.
(a) Authorization for commencement of proceedings.
The chief attorney may recommend to the committee
that disciplinary proceedings be commenced when there is probable
cause to believe that an attorney has committed professional misconduct
or when an attorney has been convicted of a crime involving conduct
that adversely reflects upon the attorney's honesty, trustworthiness
or fitness as an attorney. The chief attorney shall present the
matter to the committee along with a written recommendation, which
shall be provided to the attorney who is the subject of the proceeding.
The attorney shall have the right to appear before the committee
and to be heard in response to the charges. When a majority of
the committee members present vote to approve the filing of charges,
the chief attorney shall institute formal proceedings against
the attorney.
(b) Appeal by chief attorney .
The chief attorney may appeal to the three district chairpersons
from a committee determination declining to approve the filing
of formal charges by filing a letter stating objections to the
determination. The letter appeal shall be filed within 30 days
of the date of the adverse determination, and shall be served
on the subject attorney. The attorney may file a reply within
10 days of service of the letter appeal. On appeals taken pursuant
to 22 NYCRR 1022.20 (b), the chairpersons shall review all issues
raised by the complaint or complaints and the entire record that
was before the committee.
(c) Procedure for filing charges.
(1) To commence a proceeding in the Appellate
Division, the chief attorney shall file the original notice of
petition and petition and [12] five copies
thereof with proof of service of one copy on the respondent attorney.
Unless otherwise directed by the Appellate Division, the proceeding
shall be made returnable at [3] 2 p.m.
on the second Tuesday of the next scheduled Court term. The notice
of petition and petition shall be served in the manner set forth
in Judiciary Law §90 (6), and with sufficient notice to all parties,
as set forth in the CPLR, and shall be filed at least 20 days
prior to the commencement of the Court term when it is returnable.
(2) An attorney subject to formal disciplinary
charges shall personally appear before the Appellate Division
on the return date of the matter and thereafter on any adjourned
date, except as provided in 22 NYCRR 1022.20 (c) (1).
(3) Answer. An attorney subject to formal
disciplinary charges shall file in the Appellate Division the
original answer and 12 copies thereof with proof of service of
one copy on the chief attorney or staff counsel within 20 days
from the date of service of the petition.
(d) Disposition by the Appellate Division .
(1) When a respondent, in the answer,
denies a material allegation of the petition, thereby raising
an issue of fact, the Appellate Division may dispense with respondent's
appearance and refer the matter to a justice of the Supreme Court
or a referee designated by the Appellate Division to hear and
report without recommendation. Unless otherwise directed by the
Appellate Division, the referee shall give the matter a preference,
shall schedule the hearing on consecutive dates, to the extent
possible, and shall complete the hearing within 60 days following
the date of the entry of the order of reference. The parties shall
make final submissions, including proposed findings of fact, if
any, within 15 days following the date on which the stenographic
transcript of the minutes of the hearing is completed, and the
referee's report shall be completed within 30 days thereafter.
(2) When no issue of fact is raised,
or after completion of the hearing and report on such issue, the
Appellate Division shall fix a time at which the respondent may
be heard in mitigation or otherwise, unless the respondent waives
in writing the privilege to be heard.
( 3 ) ( a ) 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, upon the recommendation
of chief counsel or a designated staff attorney pursuant to 22
NYCRR 1022.19 (d) (2) (iii), the Appellate Division may stay the
matter under investigation or the determination of the charges
and direct that the attorney complete a monitoring program sponsored
by a lawyers' assistance program approved by the Appellate Division
upon a finding that:
(i ) the alleged
misconduct occurred during a time period
when the attorney suffered from alcohol
or other substance abuse or dependency;
(ii)
the alleged misconduct
is not such that disbarment from the practice
of law would be an appropriate sanction;
and (iii)
diverting the attorney
to a monitoring program is in the public
interest.
( b ) Upon submission of written proof of successful
completion of the monitoring program, the Appellate Division may
dismiss the disciplinary charges. In the event of an attorney's
failure to successfully complete a Court ordered monitoring program,
or, the commission of additional misconduct by the attorney during
the pendency of the proceeding, the Appellate Division may, upon
notice to the attorney and after affording the attorney an opportunity
to be heard, rescind the order diverting the attorney to the monitoring
program and reinstate the disciplinary charges or investigation.
( c ) Any costs associated with the attorney's
participation in a monitoring program pursuant to this section
shall be the responsibility of the attorney.
(e) Suspension pending disposition.
An attorney who is the subject of an investigation
or proceeding may be suspended during the pendency of the investigation
or proceeding on motion of the chief attorney, on notice to the
attorney, upon a finding by the Appellate Division that the attorney
has committed misconduct immediately threatening the public interest.
Such a finding may be based upon the attorney's default in responding
to a petition, or notice to appear for questioning or subpoena;
an admission under oath to the commission of professional misconduct;
or other uncontroverted evidence of misconduct.
§ 1022.21 Attorneys convicted of a crime
(a) Attorneys convicted of a felony.
The Appellate Division shall, upon receipt of proof
that an attorney has been convicted of a felony, as that term
is defined in Judiciary Law § 90 (4) (e), enter an order striking
the attorney's name from the roll of attorneys.
(b) Attorneys convicted of a serious crime.
(1) The Appellate Division shall, upon receipt of
proof that an attorney has been convicted of a serious crime,
as that term is defined in Judiciary Law § 90 (4) (d), enter an
order suspending the attorney pending the entry of a final order
of disposition.
The Appellate Division may, upon the application
of the attorney and for good cause shown, as provided in Judiciary
Law § 90 (4) (f), vacate the suspension.
(2) The Appellate Division shall, upon entry of the
judgment of conviction, direct the attorney to show cause why
a final order of discipline should not be entered. When an attorney
requests a hearing, the Appellate Division shall refer the matter
to a referee for a hearing, report and recommendation.
(c) Referral to Grievance Committee.
When it is determined by the Appellate Division that
the crime of which the attorney has been convicted is not a serious
crime, pursuant to Judiciary Law § 90 (4) (d), the Appellate Division
may refer the matter to a district grievance committee for investigation
and appropriate disciplinary action.
(d) Effect of reversal of conviction or pardon.
When an attorney has been suspended or disbarred
based upon a conviction of a serious crime or felony and the conviction
is subsequently reversed on appeal, or, the attorney is pardoned
by the President of the United States or a governor of any state,
the Appellate Division may vacate or modify the order of suspension
or disbarment, as provided in Judiciary Law § 90 (5).
§ 1022.22 Imposition of discipline for misconduct
committed in other
jurisdiction.
When the Appellate Division receives notice that
an attorney admitted to practice by the Fourth Department has
been disciplined by another state, territory or district, it shall
direct the attorney to appear and show cause why similar discipline
should not be imposed for the underlying misconduct. The attorney
may file, within 20 days of service of the order to show cause,
an affidavit stating any defense to the imposition of discipline
and raising any mitigating factors. After the attorney has been
heard, or, after the appearance has been waived, and upon review
of the attorney's affidavit, the order entered by the foreign
jurisdiction and the record of the proceeding in that jurisdiction,
the Appellate Division may discipline the attorney for the misconduct
committed in the foreign jurisdiction unless it finds that the
procedure in the foreign jurisdiction deprived the attorney of
due process of law, that there was insufficient proof that the
attorney committed the misconduct, or, that the imposition of
discipline would be unjust.
§ 1022.23 Incompetency or Incapacity of Attorney
(a) When the Appellate Division is presented with
proof that an attorney has been judicially declared incompetent
or has been committed to a mental facility, it shall enter an
order immediately suspending the attorney from the practice of
law. The chief attorney shall serve a copy of the order upon the
attorney, a committee appointed on behalf of the attorney or upon
the director of the appropriate facility, as directed by the Appellate
Division.
(b) At any time during the pendency of a disciplinary
proceeding or an investigation conducted pursuant to these rules,
the chief attorney, or the attorney who is the subject of the
proceeding or investigation, may apply to the Appellate Division
for a determination that the attorney is incapacitated from practicing
law by reason of mental illness or infirmity, addiction to alcohol
or illegal substances or any other condition that renders the
attorney incapacitated from practicing law. The application shall
be by notice of motion and shall be served with sufficient notice
to all parties, as set forth in the CPLR. An affidavit shall be
filed in support of the application, setting forth facts demonstrating
that the attorney is incapacitated. The Appellate Division may
appoint a medical expert to examine the attorney and render a
report and may assign counsel to represent the attorney. When
the Appellate Division finds that an attorney is incapacitated
from practicing law, the Appellate Division shall enter an order
immediately suspending the attorney from the practice of law and
may stay the pending proceeding or investigation.
§ 1022.24 Appointment of attorney to protect
clients of suspended,
disbarred, incapacitated, or
deceased attorney
(a) Suspension, Disbarment, Incapacitation
or Death
When an attorney is suspended, disbarred, incapacitated
from practicing law pursuant to 22 NYCRR 1022.23, has abandoned
the practice of law, or is deceased or is otherwise unable to
adequately protect the interests of clients, the Appellate Division
may appoint one or more attorneys to take possession of the attorney's
files, examine the files, advise the clients to secure another
attorney or take any other action necessary to protect the clients'
interests.
(b) Report to Court
An attorney appointed pursuant to 22 NYCRR 1022.24
shall file, within 30 days of the order of appointment or any
other time period set by the Appellate Division, a status report,
which shall include the name and address of each client and the
disposition of each client's file.
(c) Compensation
The Appellate Division may fix the compensation of
any attorney appointed pursuant to 1022.24 (a), and may direct
that compensation shall be a cost of the underlying disciplinary
or incapacitation proceeding.
§ 1022.25 Responsibilities of Retired Attorneys
(a) An attorney shall, at least sixty days prior
to retirement from the practice of law, notify by certified mail,
return receipt requested, each client and the attorney for each
adverse party in any pending matter involving the client, that
the attorney is retiring and shall advise each client to secure
another attorney. The attorney shall also, with respect to each
matter in which a retainer statement has been filed pursuant to
22 NYCRR 1022.2 notify the Office of Court Administration that
the attorney is retiring.
(b) In the event that a retired attorney fails to
comply with subdivision (a), the Appellate Division may appoint
an attorney to take possession of the retired attorney's files,
examine the files, advise the clients to secure another attorney
or take any other action necessary to protect the clients' interest.
§ 1022.26 Resignation from practice of law
(a) Resignation of attorney during pendency
of disciplinary
proceeding or investigation.
The Appellate Division shall enter an order striking
from the roll of attorneys the name of an attorney who is the
subject of a disciplinary proceeding or an investigation conducted
pursuant to these rules upon receipt of an affidavit or affirmation
in the form included in Appendix A, with proof of service on the
chief attorney, which sets forth the nature of the charges or
the allegations under investigation and shows that:
(1) the resignation is voluntarily rendered without
duress and with full awareness of the consequences;
(2) the resignor admits the charges or allegations
of misconduct;
(3) the resignor has no defense to the charges or
allegations of misconduct; and
(4) when the charges or allegations include the wilful
misappropriation or misapplication of clients' funds or property,
the resignor consents to the entry of an order of restitution.
(b) Resignation of attorney for non-disciplinary
reasons.
An attorney may resign from the practice of law for
non-disciplinary reasons by submitting to the Appellate Division
an affidavit or affirmation in the form included in Appendix A,
showing:
(1) the jurisdiction or jurisdictions where the attorney
is admitted, along with the respective dates of admission;
(2) the attorney's current address and, when applicable,
date that the attorney left the State of New York;
(3) that the attorney is in good standing in each
jurisdiction where admitted and that the attorney is not currently
the subject of a disciplinary proceeding or complaint;
(4) the specific reason for the resignation; and
(5) when the resignation is submitted by an attorney
residing out-of-state who does not want to submit attorney registration
fees, that the attorney does not intend to return to the State
of New York to resume the practice of law.
When the Appellate Division determines that an attorney
is eligible to resign for non-disciplinary reasons, it shall enter
an order removing from the roll of attorneys the attorney's name
and stating the non-disciplinary nature of the resignation.
§ 1022.27 Conduct of disbarred, suspended
or resigned attorneys
(a) Prohibition against practicing law.
Attorneys disbarred, suspended or resigned from practice
shall comply with Judiciary Law §§ 478, 479, 484 and 486.
(b) Notification of clients.
When an attorney is disbarred, suspended from the
practice of law or removed from the roll of attorneys after resignation,
the attorney shall promptly notify, by registered or certified
mail, each client, the attorney for each party in a pending matter
and, for each action where a retainer statement has been filed
pursuant to 22 NYCRR 1022.2, the Office of Court Administration.
The notice shall state that the attorney is unable to act as counsel
due to disbarment, suspension or removal from the roll of attorneys.
A notice to a client shall advise the client to obtain new counsel.
A notice to counsel for a party in a pending action or to the
Office of Court Administration in connection with an action where
a retainer statement has been filed shall include the name and
address of the disbarred, suspended or resigned attorney's client.
(c) Duty to withdraw from pending action
or proceeding.
When a client in a pending action or proceeding fails
to obtain new counsel, the disbarred, suspended or resigned attorney
shall move, in the court where the action or proceeding is pending,
for permission to withdraw as counsel.
(d) Affidavit of compliance.
A disbarred, suspended or resigned attorney shall
file with the Appellate Division, no later than 30 days after
the date of the order of disbarment, suspension or removal from
the roll of attorneys, an affidavit showing a current mailing
address for the attorney and that the attorney has complied with
the order and these Rules. The affidavit shall be served on the
chief attorney and proof of service shall be filed with the Appellate
Division.
(e) Compensation
A disbarred, suspended or resigned attorney may not
share in any fee for legal services rendered by another attorney
during the period of disbarment, suspension or removal from the
roll of attorneys but may be compensated on a quantum meruit basis
for services rendered prior to the effective date of the disbarment,
suspension or removal from the roll of attorneys. The amount and
manner of compensation shall be determined, on motion of the disbarred,
suspended or resigned attorney, by the court or agency where the
action is pending, or, if the action has not been commenced, at
a special term of the Supreme Court in the county where the moving
attorney maintained an office. The total amount of the legal fee
shall not exceed the amount that the client would have owed if
no substitution of counsel had been required.
(f) Required records
A disbarred, suspended or resigned attorney shall
keep and maintain records of the attorney's compliance with 22
NYCRR 1022.27 and with the order of disbarment, suspension or
removal from the roll of attorneys.
§ 1022.28 Reinstatement
The Appellate Division may enter an order reinstating
an attorney who has been disbarred, suspended or removed from
the roll of attorneys for non-disciplinary reasons, when it appears
to the satisfaction of the Appellate Division that the attorney
has established by clear and convincing evidence that: the attorney
has complied with the order of disbarment, suspension or the order
removing the attorney from the roll; the attorney has complied
with the Rules of the Court; the attorney has the requisite character
and fitness to practice law; and it would be in the public interest
to reinstate the attorney to the practice of law.
(a) Disbarred
Attorneys.
(1) Time of Application
An attorney disbarred by order of the Appellate Division
for misconduct, or stricken from the roll of attorneys pursuant
to Judiciary Law § 90 (4) or 22 NYCRR 1022.26 (a), may apply for
reinstatement to practice after the expiration of seven years
from the entry of the order of disbarment or the order striking
the attorney from the roll of attorneys.
The Appellate Division may deny the application with
leave to renew upon submission of proof of successful completion
of the New York State Bar Examination described in 22 NYCRR 520.8.
(2) Procedure.
An application for reinstatement shall be made by
motion, which shall be served with sufficient notice to all parties
as set forth in the CPLR. The motion shall be returnable at [3]
2 p.m. on the date scheduled by the Appellate
Division for disciplinary matters, or as otherwise directed by
the Appellate Division. The disbarred attorney shall personally
appear before the Appellate Division on the return date of the
application, unless otherwise directed by the Appellate Division.
The motion and all supporting papers, as set forth in 22 NYCRR
1022.28 (3), shall be filed in the Appellate Division no later
than the Friday preceding the return date.
(3) Necessary papers.
An applicant for reinstatement shall file an original
and 12 copies of the application. Papers on an application for
reinstatement following disbarment shall include: a notice of
motion; a copy of the order of disbarment or the order striking
the attorney from the roll of attorneys; a copy of the Per Curiam
Opinion of the Appellate Division, if any; a completed questionnaire
in the form included in Appendix A; proof of successful completion
of the Multistate Professional Responsibility Examination described
in 22 NYCRR 520.9; and proof of service of one copy of the application
on the chief attorney.
(4) Responding papers.
Papers in response to an application for reinstatement
must be in the form of an affidavit or affirmation and shall be
filed, along with 12 copies thereof and proof of service of one
copy on the disbarred attorney, no later than the Friday preceding
the return date of the application.
(b) Attorneys suspended for misconduct.
(1) Time of application.
A suspended attorney may apply for reinstatement
after the expiration of the period of suspension and as provided
in the order of suspension.
When an attorney has been suspended for a period
of more than one year, the Appellate Division may deny the application
with leave to renew upon submission of proof of successful completion
of the New York State Bar Examination described in 22 NYCRR 520.8.
(2) Procedure.
An attorney suspended for misconduct by order of
the Appellate Division may apply for reinstatement by making a
motion, as provided in 22 NYCRR 1022.28 (a) (2). When an attorney
has been suspended for a period of more than six months, the attorney
shall personally appear before the Appellate Division on the return
date of the application, unless otherwise directed by the Appellate
Division. An attorney suspended for a period of six months or
less shall not be required to appear before the Appellate Division,
unless otherwise directed by the Appellate Division.
(3) Necessary papers.
An applicant for reinstatement shall file an original
and 12 copies of the application. When an attorney has been suspended
for a period of more than six months, papers on an application
for reinstatement following suspension shall include: a notice
of motion; a copy of the order of suspension; a copy of the Per
Curiam Opinion of the Appellate Division, if any; a completed
questionnaire in the form included in Appendix A; proof of successful
completion of the Multistate Professional Responsibility Examination
described in 22 NYCRR 520.9; and proof of service of one copy
of the application on the chief attorney.
When an attorney has been suspended for a period
of six months or less, papers on an application for reinstatement
following suspension shall include: an affidavit of the suspended
attorney demonstrating compliance with the order of suspension
and with 22 NYCRR 1022.27; a copy of the order of suspension;
a copy of the Per Curiam Opinion of the Appellate Division, if
any; and proof of service of one copy of the application on the
chief attorney.
The Appellate Division may direct an attorney to
file a completed questionnaire in the form included in Appendix
A.
(4) Responding papers.
Responding papers may be filed as provided in 22
NYCRR 1022.28 (a) (4).
(c) Attorneys suspended pursuant to 22 NYCRR
1022.23.
(1) Time of application.
An attorney suspended pursuant to 22 NYCRR 1022.23
(a) may apply for reinstatement at such time as the attorney is
declared competent.
An attorney suspended pursuant to Rule 1022.23 (b)
may apply for reinstatement as provided in the order of suspension
or at such time as the attorney is no longer incapacitated from
practicing law.
(2) Procedure.
An attorney suspended pursuant to 22 NYCRR 1022.23
(a) or (b) may apply for reinstatement by making a motion as provided
in 22 NYCRR 1022.28 (a) (2). The attorney shall personally appear
before the Appellate Division on the return date of the application,
unless otherwise directed by the Appellate Division.
The Appellate Division may appoint a medical expert
to examine the suspended attorney or may require the suspended
attorney to be examined at the attorney's expense. The Appellate
Division may require the suspended attorney to submit records
of medical or psychiatric care made during the period of disability.
(3) Necessary papers.
An applicant for reinstatement shall file an original
and 12 copies of the application. Papers on an application for
reinstatement following suspension pursuant to 22 NYCRR 1022.23
shall include a notice of motion; a copy of the order of suspension;
a copy of the Per Curiam Opinion of the Appellate Division, if
any; proof, in evidentiary form, of a declaration of competency
or of the attorney's capacity to practice law; proof of service
of one copy of the application on the chief attorney; and, when
the suspension was for a period of one year or more, a completed
questionnaire in the form included in Appendix A; proof of successful
completion of the Multistate Professional Responsibility Examination
described in 22 NYCRR 520.9; and proof of service of one copy
of the application on the chief attorney.
(4) Responding papers.
Responding papers may be filed, as provided in 22
NYCRR 1022.28 (a) (4).
(d) Attorneys removed from roll of attorneys
after voluntary
resignation.
(1) Time of Application.
Attorneys removed from the roll of attorneys after
voluntarily resigning from practice pursuant to 22 NYCRR 1022.26
(b) may apply for reinstatement to practice at any time upon a
showing of changed circumstances.
When the attorney has been removed from the roll
of attorneys for a period of one year or more, the Appellate Division
may require that the attorney submit proof of successful completion
of the Multistate Professional Responsibility Examination described
in 22 NYCRR 520.9 or may direct that the application be denied
with leave to renew upon submission of proof of successful completion
of the New York State Bar Examination described in 22 NYCRR 520.8.
(2) Procedure.
An attorney removed from the roll of attorneys pursuant
to 22 NYCRR 1022.26 (b) may apply for reinstatement to practice
by submitting to the Appellate Division an affidavit along with
supporting documentation showing:
(i) the jurisdiction or jurisdictions where the attorney
is admitted and that the attorney is in good standing in each
jurisdiction where admitted and is not the subject of a pending
disciplinary proceeding or complaint;
(ii) the attorney's current address and, when applicable,
date that the attorney left the State of New York;
(iii) facts demonstrating a change of circumstances
subsequent to entry of the order accepting the attorney's voluntary
resignation; and
(iv) payment of attorney registration fees outstanding
at the time of the voluntary resignation and that accrued during
the period between the entry of the order removing the attorney
from the roll of attorneys and the filing of the application for
reinstatement.
When the attorney has been removed from the roll
of attorneys for a period of one year or more, the attorney shall
personally appear before the Appellate Division at [3] 2
p.m. on the next date scheduled for disciplinary
proceedings following the filing of the application, unless otherwise
directed by the Appellate Division. Attorneys removed from the
roll of attorneys for a period of less than one year prior to
the application for reinstatement shall not be required to appear
before the Appellate Division, unless otherwise directed by the
Appellate Division.
Twelve copies of the application shall be filed,
along with proof of service of one copy of the application on
the chief attorney, in the Appellate Division no later than the
Friday preceding the next scheduled disciplinary date.
(3) Necessary papers.
Unless otherwise directed by the Appellate Division
pursuant to 22 NYCRR 1022.28 (d) (2), papers on an application
for reinstatement following the entry of an order of voluntary
resignation shall include the affidavit described in 22 NYCRR
1022.28 (d) (2); a copy of the order removing the attorney from
the roll of attorneys; the Per Curiam Opinion of the Appellate
Division, if any; and proof of service of one copy of the application
on the chief attorney.
The Appellate Division may direct an attorney to
file a completed questionnaire in the form included in Appendix
A.
(4) Responding papers
Responding papers may be filed as provided in 22
NYCRR 1022.28 (a) (4).
