In a previous column,1 we focused on the historical constitutional development of due process rights in attorney discipline cases, and briefly highlighted the relatively few New York cases addressing procedural due process rights accorded to New York lawyers facing disciplinary charges. This article attempts to drill down by discussing several particular aspects of New York’s disciplinary systeminterim suspensions, collateral estoppel, standard of proof, and rules of evidenceto assess whether those components of the system conform to constitutional due process standards. A future article will address other facets of the system, including: self-incrimination, the right to be heard on appeal, reasoned decisions, discovery, and the fairness implications of a decentralized disciplinary structure. Reference will also be made, where appropriate, to the American Bar Association’s “Model Rules for Lawyer Disciplinary Enforcement” (Model Enforcement Rules2), the guideposts for national standards.
Interim Suspensions
In 1986, the New York Court of Appeals, in the consolidated cases, Matter of Padilla and Matter of Gray,3 held, for the first time, that the Appellate Divisions are empowered to suspend attorneys without a hearing pending consideration of disciplinary charges against them. The court stated that the suspension must be based on adequate notice of the alleged ethical violation(s) together with an attorney’s admission or other uncontroverted evidence of misconduct immediately threatening the public interest. Since then, each of the four departments has promulgated procedural rules governing interim suspensionssee 22 N.Y.C.R.R. §§603.4(e), 691.4(1), 806.4(f), and 1022.19(f)which essentially track the holding in Padilla and Gray.4
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