Automatic Disbarment: a Convicted Felon's Just Desserts Michael A

Hastings Constitutional Law Quarterly Volume 13 Article 2 Number 3 Spring 1986 1-1-1986 Automatic Disbarment: A Convicted Felon's Just Desserts Michael A. Gentile Sarah Diane McShea Follow this and additional works at: https://repository.uchastings.edu/ hastings_constitutional_law_quaterly Part of the Constitutional Law Commons Recommended Citation Michael A. Gentile and Sarah Diane McShea, Automatic Disbarment: A Convicted Felon's Just Desserts, 13 Hastings Const. L.Q. 433 (1986). Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol13/iss3/2 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Constitutional Law Quarterly by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Automatic Disbarment: A Convicted Felon's Just Desserts By MICHAEL A. GENTILE* AND SARAH DIANE MCSHEA** Introduction It is indeed ironic that at a time when public confidence in the hon- esty and integrity of lawyers is at its lowest, we should be called upon to defend one of the most reasonable and reliable procedures yet devised for ousting from the Bar those practitioners who are clearly dishonest, un- trustworthy or unfit. We speak, of course, of the felony disbarment rule. Generally cited with admiration and approval, statutes1 mandating the automatic or summary disbarment of convicted felons have, from time to time, drawn criticism and aroused controversy. Not surprisingly, one of the foremost opponents of felony disbarment is the legal profession's conservative bastion and powerful protector: the American Bar * Chief Counsel, Departmental Disciplinary Committee, Appellate Division of the Supreme Court of New York, First Department. B.A. Brooklyn College; J.D. Brooklyn Law School. Formerly Assistant District Attorney and Chief of Investigations, Kings County Dis- trict Attorney's Office, 1971-80. ** Deputy Chief Counsel, Departmental Disciplinary Committee, Appellate Division of the Supreme Court of New York, First Department. B.A. Yale University; J.D. Boston Uni- versity School of Law. 1. The jurisdictions mandating disbarment upon conviction of a felony or "moral turpitude" offense include the District of Columbia, Mississippi and New York. D.C. CODE ANN. § 11-2503 (1981) (moral turpitude); Miss. CODE ANN. § 73-3-41 (1972); N.Y. JUD. LAW § 90(4) (McKinney 1983). California permits summary disbarment of attorneys convicted of felonies, but only if 1) an element of the felony is "to deceive, defraud, steal or make or suborn a false statement" and 2) the offense is committed in the practice of law or against a client. CAL. Bus. & PROF. CODE § 6102(c) (West Supp. 1986). Since this provision was added in 1985, no decisions have been handed down indicating whether a separate hearing will be necessary to determine the ele- ments of the felony and its connection with the practice of law. In Maryland, the Court of Appeals issues an order to show cause why an attorney should not be disbarred once he is convicted of a felony. Taking into account the attorney's response and the circumstances of the case, the court may then suspend the attorney pending the out- come of a disciplinary hearing. MD. ANN. CODE, MD. RULES BV16 (1985). HASTINGS CONSTITUTIONAL LAW OUARTERLY rVol. 13.433 Association. Like Professor Abramovsky,2 the ABA proposes that lawyers convicted of felonies be afforded mitigation hearings and an oppor- tunity to avoid disbarment.3 We think this position is misguided and premised upon the false notion that disciplinary proceedings serve some purpose other than protection of the public and the reputation of the bar. While concerns about the careers and rehabilitation of troubled practitioners are laudable indeed, they have little place in a discussion about the licenses of convicted felons to practice law. Not only is there no constitutional bar to the felony disbarment rule, but neither fairness nor justice require that the legal profession descend further in public esteem to preserve lawyers' licenses. I. New York's Felony Disbarment Rule What are, and what should be, the consequences of a felony conviction to a lawyer's license to practice law? For well over one hundred years, New York has provided one answer to this question: immediate and automatic disbarment.4 It is the unwavering view of the New York courts and legislature that a lawyer convicted of a felony cannot be per- mitted to remain at the bar.5 At the moment of his conviction, a New York lawyer ceases to be an attorney.6 No intervening act is required by any disciplinary authority or any court.7 Justice was never swifter and, we would urge, never fairer. II. Why Felony Disbarment Is Constitutional The United States Constitution does not require that attorneys convicted of felonies be afforded evidentiary hearings before being disbarred or suspended. One hundred years ago, Justice Bradley eloquently ex- pressed the moral and professional sensibilities of his day: "If regularly convicted of a felony, an attorney will be struck off the roll as [a matter] 2. See Abramovsky, A Case Against Automatic Disbarment, 13 HASTINGS CONST. L.Q. 415, 417 (1986). 3. See, e.g., ABA STANDARDS FOR LAWYER DISCIPLINE AND DISABILITY PROCEED- INGS (1979); ABA STANDARDS FOR IMPOSING LAWYER SANCTIONS (1986). 4. N.Y. JUD. LAW § 90(4) (McKinney 1983); In re E., 65 How. Pr. 171, 172 (1879); In re Niles, 48 How. Pr. 246, 251-52 (1875). 5. N.Y. JUD. LAW § 90(4) (McKinney 1983). 6. Id. 7. In re Ginsberg, 1 N.Y.2d 144, 146-47, 134 N.E.2d 193, 194, 151 N.Y.S.2d 361,362-63 (1956) (striking lawyer's name from roll of attorneys "is no more than a formal recording of the existing fact of disbarment. It is a solemn pronouncement but not a new adjudication."); In re Sweeney, 95 A.D.2d 579, 580, 467 N.Y.S.2d 585, 586 (1983) (the law is "self-executing"). Spring 1986] AUTOMATIC DISBARMENT-JUST DESSERTS of course, whatever the felony may be, because he is rendered infa- mous."' We submit that, Professor Abramovsky's views notwithstand- ing,9 the law is no different today. An attorney regularly convicted of a felony may be disbarred summarily, without offense to either the federal Constitution or modern notions of justice. The justification for automatic and mandatory felony disbarment is clear. As the New York Court of Appeals wrote in In re Mitchell, 10 affirming the disbarment of the former Attorney General of the United States upon his conviction of perjury and obstruction of justice, "[t]o permit a convicted felon to continue to appear in our courts ... would not 'advance the ends of justice', but instead would invite scorn and dis- respect for our rule of law." 11 The court affirmed the constitutionality of both the felony disbarment rule and its application before the appeal was exhausted. 12 Without citing In re Ming,1 3 Mitchell rejected Ming's prem- ise that a criminal conviction could not serve as the predicate for professional discipline until it was final, that is, until all appeals were completed. 14 The court upheld the fairness of the felony disbarment rule, finding that the "concern for the protection of the public interest far outweighs any interest the convicted attorney has in continuing to earn a livelihood in his chosen profession."15 In balancing an attorney's interest in his law license-an interest that the New York Court of Appeals has recently described as a "property" interest' 6 -against the public interest in maintaining the honor and integrity of the legal profession, the lawyer's right to his license inevitably will be less important, particularly when the lawyer is a convicted felon. Even the Ming court, troubled by the summary suspension of an attorney convicted of a misdemeanor offense, side-stepped the clearly distinguishable issue of the convicted felon's right to practice law, apparently recognizing the fundamentally 8. Ex parte Wall, 107 U.S. 265, 273 (1882). 9. See Abramovsky, supra, note 2. 10. 40 N.Y.2d 153, 351 N.E.2d 743, 386 N.Y.S.2d 95 (1976). 11. Id. at 156, 351 N.E.2d at 745, 386 N.Y.S.2d at 97. 12. Id. at 157, 351 N.E.2d at 746, 386 N.Y.S.2d at 97. 13. In re Ming, 469 F.2d 1352 (7th Cir. 1972). See Abramovsky, supra note 2, at 422. 14. Mitchell, 40 N.Y.2d at 157, 351 N.E.2d at 746, 386 N.Y.S.2d at 97 (strong "presump- tion of regularity" attaches to judgment of conviction). 15. Id. at 156, 351 N.E.2d at 745, 386 N.Y.S.2d at 97; see also In re Hughes, 90 N.J. 32, 36, 446 A.2d 1208, 1210 (1982). 16. In re Capoccia, 59 N.Y.2d 549, 553, 453 N.E.2d 497, 499, 466 N.Y.S.2d 268, 269 (1983); accord In re Seiffert, 65 N.Y.2d 278, 480 N.E.2d 734, 491 N.Y.S.2d 145 (1985); cf. Supreme Court of N.H. v. Piper, 105 S. Ct. 1272, 1276-78 (1985) (for purposes of Privileges and Immunities Clause, right to practice law is a "fundamental" right). HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 13:433 17 different implications of misdemeanor and felony offenses. In criticizing the felony disbarment rule, Professor Abramovsky first focuses on issues of due process.18 This attack relies heavily upon the dicta in Ming and upon a plethora of eminently quotable sentiments ar- ticulated in various "due process" cases.

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