In the Matter of Peter Citrin, a Disbarred Attorney, Appellant.
No. 12
COURT OF APPEALS OF NEW YORK
94 N.Y.2d 459;
727 N.E.2d 569;
2000 N.Y. LEXIS 506;
706 N.Y.S.2d 72
February 15, 2000, Argued
March 30, 2000, Decided
PRIOR HISTORY:
[***1]
Appeal, by permission of the Court of Appeals, from an order of the Appellate
Division of the Supreme Court in the Second Judicial Department, entered June
7, 1999, which denied petitioner's application seeking
reinstatement to the Bar.
DISPOSITION: Order reversed, with costs, and matter remitted to the Appellate Division,
Second Department, for further proceedings in accordance with the opinion
herein.
HEADNOTES:
Attorney and Client -
Reinstatement - Opportunity of Applicant to View Favorable Report of Character Committee
A
disbarred attorney is entitled to obtain a report that the Character Committee prepared
in
conjunction with his application for
reinstatement to the Bar and provided to the Appellate Division, Second Department, where
that report
recommended that petitioner be
reinstated, a fact never disclosed to him. Inasmuch as a rule of that Department (see, 22 NYCRR 690.16) states that a report which
recommends
disapproval of an applicant must be provided to the applicant, the court's
failure to provide petitioner with a copy of a favorable report was arbitrary. The report was
the only document the Appellate Division mentioned in denying petitioner's
first application, and--there having been no additional hearing--must be deemed
to have also
factored into the second denial. Without access to the report, petitioner did not have
the opportunity contemplated by the court's own rules to correct any errors in
the report or to
address the Committee's concerns about his
reinstatement. The fact that the Committee's report
recommended
reinstatement did not justify denial of the report or
obviate petitioner's need for it, as the report may be
equivocal or raise other concerns about the applicant's character that the
tribunal will
comprehensively
weigh. Such materials may be
redacted to remove
confidential information, and the Appellate Division is not
required to provide petitioner with a
detailed statement of its reasons for denying his applications.
COUNSEL:
Beldock Levine
& Hoffman, L. L. P., New York City (Hal R. Lieberman, Richard Supple and
Julie F. Kowitz of counsel), for appellant. I. A disbarred attorney in the Second Department
obtains a property interest in his or her law license if every condition for
reinstatement set forth in 22 NYCRR 691.11 is satisfied. (Board of Regents v Roth, 408 US 564;
Matter of Medicon Diagnostic Labs. v Perales, 74 NY2d 539;
Matter of Daxor Corp. v State of New York Dept. of Health, 90 NY2d 89;
White Plains Towing Corp. v Patterson, 991 F2d 1049,
cert denied sub nom.
White Plains Towing Corp. v Wright, 510 US 865;
Frasier v U.S. Dept. of Health & Human Servs., 779 F Supp 213;
Town of Orangetown v Magee, 88 NY2d 41;
[***2]
Colson v Sillman, 852 F Supp 1183, 35 F3d 106;
Perry v Sindermann, 408 US 593;
O'Brien v O'Brien, 66 NY2d 576;
Schware v Board of Bar Examiners, 353 US 232.) II. The Second Department deprived appellant of his protected property
interest in his license to practice law without according him due process of
law. (Mathews v Eldridge, 424 US 319;
Mackey v Montrym, 443 US 1;
LaRossa, Axenfeld & Mitchell v Abrams, 62 NY2d 583;
Supreme Ct. v Piper, 470 US 274;
Ex parte Garland, 4 Wall [71 US] 333;
Matter of Jacobs, 44 F3d 84;
Lynn v Regents of Univ. of Cal., 656 F2d 1337, 459 US 823;
Pringle v Wolfe, 88 NY2d 426;
Matter of Nuey, 61 NY2d 513;
Knox v Salinas, 193 F3d 123.) III. The inequity in the amount of process afforded by the various Appellate
Divisions'
reinstatement procedures discriminates against attorneys seeking
reinstatement in the Second Department and thus violates their right to equal protection of
the laws. (Matter of Licato, 104 AD2d 20;
[***3]
Under 21,
Catholic Home Bur. for Dependent Children v City of New York, 65 NY2d 344;
Matter of Abrams v Bronstein, 33 NY2d 488;
Abberbock v County of Nassau, 213 AD2d 691, 86 NY2d 708;
Weissman v Evans, 56 NY2d 458;
Manes v Goldin, 400 F Supp 23, 423 US 1068.) IV. The Second Department's decision to
deny appellant's
reinstatement petition was arbitrary and capricious. (New York State Trawlers Assn. v Jorling, 16 F3d 1303;
Matter of Purdy v Kreisberg, 47 NY2d 354;
Matter of Assael, 109 AD2d 457;
Matter of Mascaro, 189 AD2d 388;
Matter of Canale, 246 AD2d 908;
Matter of Safran, 107 AD2d 238;
Matter of Rothman, 140 AD2d 24;
Matter of Troy, 133 AD2d 386;
Matter of Capanegro, 113 AD2d 910;
Matter of Miller, 104 AD2d 615.)
Eliot Spitzer, Attorney General, New York City (Thomas B. Litsky, Preeta D. Bansal and
Robert A. Forte of counsel), for respondent. I. Because the decision to reinstate disbarred
attorneys is wholly
[***4] within the discretion of the Appellate Divisions, compliance with the criteria
for application does not create a property
right to
reinstatement. (Board of Regents v Roth, 408 US 564;
Matter of Medicon Diagnostic Labs. v Perales, 74 NY2d 539;
Matter of Daxor Corp. v State of New York Dept. of Health, 90 NY2d 89;
Matter of Doe v Coughlin, 71 NY2d 48, 488 US 879;
Matter of Rowe, 73 NY2d 336;
Matter of Mairs, 102 AD2d 146;
Matter of Licato, 104 AD2d 20;
Goldsmith v United States Bd. of Tax Appeals, 270 US 117;
Schware v Board of Bar Examiners, 353 US 232;
Willner v Committee on Character & Fitness, 373 US 96.) II. The Second Department's
reinstatement procedures provide disbarred attorneys with a full and fair opportunity to be
heard on their applications for
reinstatement. (Mathews v Eldridge, 424 US 319;
Armstrong v Manzo, 380 US 545;
Matter of Capoccia, 59 NY2d 549;
Matter of Maddox, 157 AD2d 244, 76 NY2d 705.) III. Citrin's equal protection claim
[***5] is meritless because the Second Department's
reinstatement rules provide essentially the same process as the other Judicial Departments.
(Gabrelian v Gabrelian, 108 AD2d 445, 66 NY2d 741.) IV. The Second Department properly exercised its discretion when it determined
that Citrin did not possess the requisite character and fitness to practice
law. (Randall v Brigham, 7 Wall [74 US] 523;
Matter of Anonymous, 21 AD2d 48;
Matter of Miller, 104 AD2d 615;
Matter of Mascaro, 189 AD2d 388;
Matter of Canale, 246 AD2d 908;
Matter of Safran, 107 AD2d 238;
Matter of Rothman, 140 AD2d 24;
Matter of Troy, 133 AD2d 386;
Matter of Capanegro, 113 AD2d 910.)
Michael S. Ross, New York City, for Committee on Professional Discipline of the New York County
Lawyers' Association,
amicus curiae. Although each Appellate Division is free to enact its own rules governing
attorney discipline and
reinstatement after suspension and
disbarment, those rules must satisfy fundamental principles of fairness and due process. (O'Brien v O'Brien, 66 NY2d 576;
[***6]
Board of Regents v Roth, 408 US 564;
Matter of Selling v Radford, 243 US 46;
Willner v Committee on Character & Fitness, 373 US 96;
Matter of Mattox v Disciplinary Panel of U.S. Dist. Ct., 758 F2d 1362;
Matter of Licato, 104 AD2d 20;
Matter of Mairs, 102 AD2d 146;
In re Ruffalo, 390 US 544;
Spevack v Klein, 385 US 511;
Gerzof v Gulotta, 87 Misc 2d 768, 57 AD2d 821, 42 NY2d 960.)
JUDGES: Chief Judge Kaye and Judges Bellacosa, Smith, Levine, Ciparick and Wesley
concur in Per Curiam opinion; Judge Rosenblatt taking no part.
OPINION:
[*462]
[**570]
PER CURIAM.
Petitioner-appellant is a
disbarred attorney who has twice applied, without success, for
reinstatement to the Bar. He argues that he was entitled to obtain a report that the
Committee on Character and
Fitness prepared in
conjunction with his quest for
reinstatement and provided to the Appellate Division. Petitioner wished to have the
opportunity to address the concerns of the Committee and correct any possible
misstatements contained in the report. We agree that
[***7] petitioner was entitled to that opportunity, and accordingly reverse.
Petitioner was admitted to the Bar of the State of New York in the Appellate
Division of the Second Judicial Department on January 23, 1980. Over the next
three years, he held several different legal jobs before starting his own
general law practice, which emphasized assigned criminal work, personal injury
cases, real estate transactions and wills. In 1987, while mired in debt
brought about by a
serious
gambling problem, petitioner became involved in a criminal scheme by which husbands
obtained private
mortgages at reduced interest rates, usually on their marital homes, by forging their
wives' names on
powers of attorney and related documents. On a number of occasions, petitioner was paid for
preparing
powers of attorney for these transactions and appearing at the closings. He also took three such
mortgages on his own home, without his wife's consent, in order to pay
gambling debts.
As a result of these actions, petitioner was arrested on March 1, 1989, and
shortly thereafter pleaded guilty in Nassau County District Court to conspiracy
in the fifth degree. As part of the plea agreement, he was sentenced to
[***8] three years of probation, was ordered to pay approximately $ 15,000 in
restitution and resigned from the Bar. By order dated October 10, 1989, the Second
Department accepted
petitioner's resignation and
disbarred him.
Pursuant to the rules of that court,
disbarred attorneys are allowed to apply for
reinstatement after the passage of seven years (see, 22 NYCRR 691.11 [a]). Petitioner first applied for
reinstatement on January 15, 1997, submitting evidence that he had successfully completed
his term of probation, paid his
restitution, complied with the
disbarment order and received treatment for his
gambling problem. He also submitted proof that he had passed the Multistate
Professional Responsibility Examination (see, 22 NYCRR 691.11 [b] [2]).
[*463]
The court held petitioner's application in abeyance and referred the matter to
its Committee on Character and
Fitness for an investigation and report on petitioner's
fitness to practice law. On August 25, 1997, a two-member Subcommittee held a hearing at which
petitioner testified. The Subcommittee submitted a report to the full
Committee, which in turn prepared its own written report. The
Committee provided
[***9] the court, but not petitioner, with its report. Although the Committee
recommended that petitioner be
reinstated--a fact never disclosed to him--on March 18, 1998 the court denied the
application
"[u]pon the report of the Committee on
[**571] Character and
Fitness and the exhibits annexed thereto."
On January 27, 1999, petitioner filed a second application for
reinstatement, supporting his application with a memorandum of law and additional evidence
that he had recovered from his
gambling problem and had the
requisite character and
fitness to resume the practice of law. No hearing was held on the second
reinstatement petition, which was unopposed by the Grievance Committee, the Lawyers' Fund
for Client Protection and the Character Committee. On June 7, 1999, the Second
Department denied the petition, finding
"that the petitioner does not demonstrate the
requisite
fitness and character to practice law." Shortly thereafter, petitioner's counsel requested access to all reports
prepared by the Character Committee
in
conjunction with petitioner's requests for
reinstatement. The request was denied.
Pursuant to Second Department rule,
[***10] a
disbarred or suspended attorney's application for
reinstatement
"may be granted ... only upon a showing by the applicant ... by clear and
convincing evidence that he has fully complied with the provisions of the order
disbarring or suspending him or striking his name from the roll of attorneys,
and that he possesses the character and general
fitness to practice law" (22 NYCRR 691.11 [b]). Applicants for
reinstatement must also pass the Multistate Professional Responsibility Examination (see, id.). The other three Judicial Departments of the Appellate Division have similar
rules (see, 22 NYCRR 603.14 [First Department], 806.12 [Third Department], 1022.28 [Fourth
Department]).
Section 691.11 requires the Second Department to refer an application for
reinstatement
"to the Committee on Character and
Fitness in this judicial department or to a referee, justice or
judge for a report before granting such application." Thus, a report is sent to the court in every instance in which the Second
[*464] Department is considering
[***11] the
reinstatement of an applicant. Although section 691.11 does not mention whether an
applicant is entitled to see this report, the Department applies section
690.16--relating to first-time applications for admission to the Bar--to
reinstatement proceedings (see, 22 NYCRR 690.16).
Pursuant to section 690.16, after a Subcommittee of the Character Committee has
conducted a hearing, the Subcommittee's report and the record of the hearing
are transmitted to the full Committee. The Committee may confirm, reverse or
modify the Subcommittee's report, or direct that a further hearing be held.
Furthermore,
"[i]f the committee's decision
recommends
disapproval of the applicant ... it shall include a statement of the grounds on which it
is based, and a copy thereof shall be served on the applicant or the
applicant's attorney" (22 NYCRR 690.16). Thus,
pursuant to Second Department rule, if the Committee's report had
recommended
disapproval, petitioner would have received it, in order to afford him an
opportunity to respond. Instead, however, because a majority of the Committee
recommended
[***12] that petitioner be
reinstated, neither that fact nor the report was disclosed to him.
We agree with petitioner's argument that, in light of section 690.16, the
court's
failure to provide him with a copy of the report preceding rejection of his
reinstatement application was arbitrary. The report was the only document the Second
Department mentioned in denying petitioner's first application, and--there
having been no additional hearing--must be deemed to have also
factored into the second denial. Without access to the report, petitioner did not have
the opportunity contemplated by section 690.16 of the court's own rules to
correct any errors in the report or to address the Committee's concerns about
his
reinstatement. In effect, he was denied the opportunity to satisfy his burden of
demonstrating that he possessed the
requisite character and
fitness to practice law, as he was not permitted
[**572] to
know of or rebut any evidence to the contrary contained in the report.
The importance to applicants for
reinstatement of being able to respond to the Committee's report is evident from the mandate
of section 690.16 that applicants receive Committee reports recommending
[***13]
disapproval. The fact that here the Committee's report
recommended
reinstatement did not justify denial of the report or
obviate petitioner's need for it. Indeed, although the Committee may ultimately
recommend
reinstatement, its report may be
equivocal or raise other concerns about
[*465] the applicant's character that the
tribunal will
comprehensively
weigh. Before the Appellate Division relies on such a report to deny
reinstatement, the applicant should have an opportunity to address such issues. Thus, in the
case at bar, petitioner should have been sent the Committee's report and
accompanying exhibits, and given an
opportunity to respond before the court reached its decision. Of course, before such materials are
sent to an applicant for
reinstatement, they may be
redacted to remove Committee deliberations and other
confidential information.
We do not agree with petitioner, however, that the Appellate Division was
required to provide him with a more
detailed statement of reasons for denying his applications. Moreover, we underscore that we take
no position with respect to the merits of petitioner's application for
reinstatement, a matter vested in the authority of the
[***14] respective Appellate Division Departments. In light of our narrow holding and
remittal, we do not reach petitioner's remaining arguments.
Accordingly, the order of the Appellate Division should be reversed, with
costs, and the matter remitted to that court for further proceedings in
accordance with this opinion.
Chief Judge Kaye and Judges Bellacosa, Smith, Levine, Ciparick and Wesley
concur in Per Curiam opinion; Judge Rosenblatt taking no part.
Order reversed, etc.
