ATTORNEYS AND ELDER ABUSE

Almost all of the last decisions of the 2nd Department in 2017 dealt with attorney discipline.

One stood out, however, was the case of the attorney, who after being appointed a successor guardian of an elderly man, engaged in a series of self-dealings including receiving commissions from the sale of property under a shell company, appointing his wife as geriatric care manager and naming himself as executor and trustee in a will at a time when the elderly man lacked testamentary capacity.

See Matter of D'Angelo, 2017 NY Slip Op 09277, Decided on December 29, 2017, Appellate Division, Second Department

WHEN ATTORNEYS COMMIT FELONIES

Disbarment will occur on the date of conviction or plea. Matter of Butcher, Supreme Court, Appellate Division Third Judicial Department Decided and Entered: August 31, 2017,  D-169-17:

"Respondent was automatically disbarred and ceased to be an attorney by operation of law in April 2017 when he entered his guilty plea to a felony, which, for attorney discipline purposes, served as the equivalent of a conviction (see Judiciary Law § 90 [4]; Matter of Tendler, 131 AD3d 1301, 1302 [2015]; Matter of Montague, 130 AD3d 1297, 1298 [2015]; Matter of Sanderson, 119 AD3d 1318, 1318 [2014]).  Accordingly, the motion by AGC to strike respondent's name from the roll of attorneys is a formality that merely confirms respondent's disbarment (see Matter of Tendler, 131 AD3d at 1302; Matter of Brunet, 106 AD3d 1443, 1443 [2013]).  Given these circumstances, we grant AGC's motion and strike respondent's name from the roll of attorneys nunc pro tunc to April 3, 2017."

CPLR 321 (C) AUTOMATIC STAY

CPLR 321 (c):  provides:

"Death, removal or disability of attorney.  If an attorney dies, becomes physically or mentally incapacitated, or is removed, suspended or otherwise becomes disabled at any time before judgment, no further proceeding shall be taken in the action against the party for whom he appeared, without leave of the court, until thirty days after notice to appoint another attorney has been served upon that party either personally or in such manner as the court directs."

The stay is automatic. Most recently in DUANDRE CORP. v. GOLDEN KRUST CARIBBEAN BAKERY & GRILL, 2016 NY Slip Op 4461 - NY: Appellate Div., 1st Dept. 2016:

"The suspension of defendant's counsel during the pendency of this action resulted in an automatic stay of the proceedings against defendant until thirty days after notice to appoint another attorney was served upon him, or until the court granted leave to resume proceedings (CPLR 321[c]; Moray v Koven & Krause, Esqs., 15 NY3d 384, 388-390 [2010]). Because there was no compliance with the leave or notice requirements of CPLR 321(c), and the record demonstrates that defendant did not retain new counsel until February 2014, the automatic stay was in place when the November 22, 2013 judgment was entered based upon defendant's default. Accordingly, the judgment must be vacated. Defendant's failure to invoke CPLR 321(c) until submission of his reply papers on his motion does not result in a waiver of his argument (Moray, 15 NY3d at 390). Nor was he required to submit an affidavit of merit (Scirica v Colantonio, 111 AD3d 571, 572 [1st Dept 2013])."

LAWYERS WHO COMMIT CRIMES

After reading the recent news of the arrest of one Long Island attorney arrested for stealing escrow funds, I came across this article from the NYLJ reprinted the the blog "Legal Ethics":

http://nylegalethics.attorney/lawyers-who-commit-crimes-disciplinary-consequences/

LAWYERS AND MENTAL ILLNESS

Yesterday I read a decision from the Appellate Division, First Department regarding an attorney's disbarment - basically neglect of work due to depression and mental illness but the Appellate Division noted in dicta that it would only have suspended the attorney if the attorney responded to the charges (but the attorney could not due to the attorney's mental illness). Matter of Blank, 2013 NY Slip Op 05724 (AD 1st Dept August 27, 2013)

Note this editorial from the New York Times earlier this month:

NYT - Lawyers of Sound Mind?