Hyperlawhypertext legal databasebeta Cahn v. Joint Bar Ass'n Grievance Committee 52 N.Y.2d 479

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Cahn v. Joint Bar Ass'n Grievance Committee

52 N.Y.2d 479 Court N.Y. Decision date 1981-04-07 English

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In the Matter of William Cahn, an Attorney, Appellant, v Joint Bar Association Grievance Committee for the Second and Eleventh Judicial Districts, Responent.
Argued February 12, 1981;
decided April 7, 1981
p. 480
POINTS OF COUNSEL
Edward Newman for appellant.
I. Appellant has not been convicted of a criminal offense, which if committed in this State would constitute a felony. (Matter of Chu, 42 NY2d 490 ; People v Gottlieb, 36 NY2d 629 ; United States v Aadal, 368 F2d 962 , 386 US 970 ; People ex rel. Goldman v Denno, 9 NY2d 138 ; Matter of Leifer, 63 AD2d 174 ; Rubin v Empire Mut. Ins. Co., 25 NY2d 426 ; Greenspan v Travelers Ins. Co., 98 Misc 2d 43 .) II. Automatic disbarment deprives appellant of due process and equal protection constitutional rights. (Schware v Board of Bar Examiners, 353 US 232 ; Vlandis v Kline, 412 US 441 ; Stanley v Illinois, 405 US 645 ; Matter of Milchman, 74 AD2d 92 ; Matter of Schleimer, 69 AD2d 142 ; Matter of Howard, 75
p. 481
AD2d 933 ; Matter of Rinehart, 74 AD2d 314 ; Matter of Brown, 75 AD2d 398 ; Miller v Carter, 547 F2d 1314 , 434 US 356 ; Jiminez v Weinberger, 417 US 628 .)
Frank A. Finnerty, Jr., for respondent.
I. The constitutionality of the automatic disbarment of attorneys convicted of felony crimes, without further hearing, is beyond cavil. (Matter of Peltz, 60 AD2d 587 , 43 NY2d 646 , 436 US 926 ; Matter of Davis, 60 AD2d 613 , 44 NY2d 641 , 439 US 881 ; Matter of Rosenberg, 62 AD 2d 1065 , 44 NY2d 648 , 439 US 934 ; Matter of Brasco, 62 AD2d 1006 , 45 NY2d 711 , 441 US 905 ; Matter of Podell, 61 AD2d 1019 , 45 NY2d 711 , 441 US 905 ; Matter of Thies, 61 AD2d 1037 , 45 NY2d 865 , 924, 46 NY2d 940 .) II. Certain Federal felony crimes of which petitioner-appellant was convicted work an automatic disbarment in New York notwithstanding the July, 1979 legislative amendment of section 90 of the Judiciary Law.
Stanley R. Goodman for Long Beach Lawyers Association, amicus curiae.
In the absence of statutes embracing conduct of equal scope and magnitude, an examination of the record should be made, prior to automatic disbarment under section 90 (subd 4) of the Judiciary Law. (Matter of Chu, 42 NY2d 490 ; People v Broody, 5 NY2d 500 ; Matter of Barash, 20 NY2d 154 ; Matter of Schleimer, 69 AD2d 142 ; Matter of Rosenbaum, 72 AD2d 251 ; Matter of Milchman, 74 AD2d 92 ; United States v Knox, 396 US 77 ; Matter of Howard, 75 AD2d 993 ; Matter of Rinehart, 74 AD2d 314 ; Matter of Brown, 75 AD2d 398 .)

OPINION OF THE COURT

The order of the Appellate Division should be reversed, without costs, and the matter remitted to the Appellate Division for further proceedings in accordance with this opinion. The question certified should be answered in the negative.

Appellant was admitted to the New York Bar in 1949 and served for a number of years as Nassau County District Attorney. He was convicted in 1976 in Federal court

p. 482
of offenses that included making false statements, a felony under Federal law (US Code, tit 18, § 1001). Because appellant’s Federal felony conviction automatically disbarred him under subdivision 4 of section 90 of the Judiciary Law, as it then existed (see Matter of Chu, 42 NY2d 490 ; Matter of Thies, 45 NY2d 865 ), the Appellate Division ordered appellant’s name stricken from the roll of attorneys (Matter of Cahn, 59 AD2d 179 , mot for lv to app den 44 NY2d 641 , cert den 439 US 1069 ).

The Legislature amended section 90 in 1979 to limit automatic disbarment to only those felonies in other jurisdictions that would also constitute felonies under New York law (L 1979, ch 674). At the same time, it provided that an attorney who had been automatically disbarred under the prior law could seek vacatur or modification of the disbarment on the ground that the offense in the other jurisdiction would not be a felony in New York (L 1979, ch 674, § 3). Appellant brought a petition pursuant to this provision, which requires that the Appellant Division determine if the offense for which the petitioner was convicted would be a felony under State law and, if not, grant a hearing to consider whether any relief would be appropriate. For purposes of this determination, the felony in the other jurisdiction need not be a mirror image of the New York felony, precisely corresponding in every detail (see Matter of Chu, 42 NY2d 490 , 492, swpra), though it must have essential similarity. Because the Appellate Division failed to expressly determine the threshold question whether appellant’s offense would constitute a felony under New York law, the matter should be remitted for this determination and such other proceedings as are proper.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Fuchsberg and Meyer concur in Per Curiam opinion; Judge Wachtler taking no part.

Order reversed, without costs, and matter remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein. Question certified answered in the negative.

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