Letter From The President Of The New York City Bar Association

2006-11-01 00:00

To The Readers Of The Metropolitan Corporate Counsel :

The legal profession is the only profession in New York State that is not regulated uniformly on a statewide basis. In addition, New York is the only state in the country in which attorneys are disciplined in a less than uniform manner. Pursuant to the Judiciary Law, the Appellate Division has the responsibility of regulating the conduct of attorneys. Unfortunately, in fulfilling this responsibility, the four Departments have promulgated rules that have not been uniform in nature. It has been argued that this lack of uniformity creates an appearance of unfairness and disparate treatment of attorneys that does not serve to enhance the image of the disciplinary process.

The four Departments differ on a number of issues, including suspension of attorneys, reinstatement, and disbarment. In addition, our eight statewide Grievance Committees impose sanctions with varying names and they also impose sanctions with the same names, but which are different in nature and consequence.

Recently, the City Bar Association submitted a recommendation to the Appellate Division, First Department, that may serve to harmonize the formal approach taken by all four Departments towards attorneys suffering from dependencies on alcohol, substance abuse, or certain mental health conditions. Unfortunately, these health issues have been steadily increasing within the profession. According to a recent ABA study, the incidence of depression and substance abuse among attorneys is significantly higher than in the general population and out of 105 occupations, lawyers rank first in suffering from depression.

Over the past 10 years, the City Bar has, on several occasions, recommended a uniform court rule that would provide diversion from the disciplinary process for attorneys with substance abuse problems. Beginning in 2003, the Second, Third, and Fourth Departments adopted rules that establish diversion programs for attorneys suffering from alcoholism or other substance abuse or dependencies. These rules followed the recommendations of the Bellacosa Commission that was created by Chief Judge Kaye to assist attorneys with certain disabilities. While some of the details differ in the rules, essentially, the attorney is diverted from the disciplinary system and an intervention replaces a sanction. If the attorney successfully completes the conditions set forth in a diversion contract without engaging in additional misconduct, the matter is dismissed. If the attorney fails to complete treatment or monitoring, the complaint is handled within the traditional disciplinary process.

In its continuing study of this issue, our Committee on Professional Discipline and our Lawyer Assistance Program noted that the First Department has taken a flexible and effective approach towards attorneys with these disabilities. As a result, the Court, on an ad-hoc basis, has demonstrated a willingness to be innovative in fashioning appropriate remedies for attorneys suffering from alcoholism, substance abuse, or mental health conditions. Nonetheless, we urge that the First Department adopt a formal rule, similar to the existing rules in the other three Departments. We believe that the adoption of the rule will serve to focus the profession on the importance of this problem and will assist the Court in achieving the important goal of aiding attorneys with these serious health issues.

The rule proposed by the City Bar Association adopts the flexible approach taken by the Second and Third Departments concerning the nature of attorney misconduct that should be eligible for diversion. We believe that the Court must consider the seriousness of the alleged misconduct but should not preclude diversion, as does the Fourth Department rule, in cases where the alleged misconduct would result in disbarment. However, we also recognize that diversion is not usually appropriate in the most serious cases, such as the conversion of a client's funds. Nonetheless, our proposed rule would give the Court the discretion to evaluate under what circumstances a diversion is appropriate. Other provisions of our rule differ slightly from the existing rules in all three Departments.

Our rule is also similar to the rule adopted by the Second and Third Departments that requires a causal connection between the alleged misconduct and the attorney's dependency. In addition, our rule would divert the attorney from the investigative stage of the disciplinary process by staying the investigation or determination of misconduct and instead, referring the attorney to a court-approved lawyer assistance program.

We strongly urge the First Department to consider the merits of our proposed rule. We believe it represents a positive step towards promoting the best interests of our profession and the public. We also believe that the four Departments should strive, with respect to the diversionary rule as well as the disciplinary process in general, to adopt uniform rules that apply to all attorneys in New York State. This can only enhance the image of the disciplinary process itself.


Barry Kamins