Keogh, In re

• Decision Date: 21 June 1965
• Citation: 267 N.Y.S.2d 87,25 A.D.2d 499
• Parties: In the Matter of James Vincent KEOGH, attorney at law. Roy RICHARDSON, Petitioner, v. James Vincent KEOGH, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 87

267 N.Y.S.2d 87

25 A.D.2d 499

In the Matter of James Vincent KEOGH, attorney at law.

Roy RICHARDSON, Petitioner, v. James Vincent KEOGH, Respondent.

Supreme Court, Appellate Division, Second Department.

June 21, 1965.

Reavis & McGrath, New York City, for respondent Keogh, Philip Handelman, New York City, of counsel.

Roy Richardson, New York City, for petitioner, Solomon A. Klein, New York City, of counsel.

Before CHRIST, Acting P. J., and BRENNAN, HILL, HOPKINS and BENJAMIN, JJ.

MEMORANDUM BY THE COURT.

Motion by petitioner to clarify this court's amended order of reference in this proceeding, by adding to such order provisions to the effect that at the hearings to be hald herein by the Referee: (1) the judgment of conviction in the criminal action in the federal court (United States v. Kahaner (Keogh), et al., 2 Cir., 317 F.2d 459; cert. den. 375 U.S. 836,84 S.Ct. 73, 11 L.Ed. 2d 65) is not subject to impeachment or collateral attack; and (2) the issues in such action shall not be relitigated or tried de novo.

This motion will be treated by the court (as in effect it has been by the parties) as a motion to dismiss as insufficient in law and to strike out as irrelevant the allegations in respondent's answer: (1) which assert, in effect, as a complete and partial defense, that respondent is innocent of the charges on which he was convicted in the federal court; (2) which allege that he is entitled to establish such innocence by proof and that he is now entitled to a comprehensive inquiry de novo as to all aspects of said charges and upon all the facts and circumstances relating to them, despite the existing federal judgment of conviction; and (3) which allege that his trial in the federal court was not fair or proper, in that: (a) instead of being tried separately, he was tried jointly with his two co-defendants, Kahaner and Carallo; (b) there was undue publicity in the public press; (c) he was convicted upon the uncorroborated testimony of accomplices; and (d) the jury's verdict of guilty was the result of coercion, hysteria and misunderstanding.

The motion is granted and all such allegations, which are contained in paragraphs 2, 3, 4, 5, 6, 7 and 9 of the respondent's answer, are directed to be stricken out.

Respondent is not entitled to a relitigation, at the hearings to be held by the Referee, of the facts upon which respondent's judgment of conviction was based or of the fairness of the trial in the federal court at which he was found guilty of the crime of conspiracy to crruptly influence, obstruct and impede the administration of justice.

By statute, the Appellate Division in each Department has the responsibility and exclusive authority to censure, suspend from practice or remove from office any attorney and counsellor-at-law, '* * * who is guilty of * * * crime or misdemeanor, or any conduct prejudicial to the administration of justice' (Judiciary Law, § 90, subd. 2).

Only in the case of conviction of a crime deemed to be a felony under New York Law is this court's discretion foreclosed (Judiciary Law, § 90, subd. 4). In such case disbarment is automatic upon presentation of a certified copy of the judgment of conviction, and is subject to reconsideration only in the event of a reversal of the judgment on appeal or the granting of a pardon by the President of the United States or the Governor of this State (Judiciary Law, § 90, subds. 4, 5; Matter of Ginsberg, 1 N.Y.2d 144, 146, 151 N.Y.S.2d 361, 362, 134 N.E.2d 193; Matter of Donegan, 282 N.Y. 285, 288, 26 N.E.2d 260).

With the exceptions noted, an attorney's conviction of a crime deemed to be a felony under New York law is conclusive as to his unfitness to practice law, but conviction of a crime deemed to be a misdemeanor under New York law is not conclusive evidence of such unfitness. However, the legislative grant of discretionary power to determine the fitness of an attorney convicted of a misdemeanor crime does not impose upon this court an obligation to permit relitigation of the facts and law upon which guilt has already been adjudicated beyond a reasonable doubt by another court of competent jurisdiction. In such case the judgment of conviction, while not conclusive evidence of the attorney's unfitness to practice law, may be regarded by this court as conclusive proof of his guilt of the crime charged (cf. In re Patlak, 368 Ill, 547, 15 N.E.2d 309, 116 A.L.R. 627; State v. Stringfellow, 128 La. 463, 54 So. 943; Underwood v. Commonwealth, 32 Ky. 32, 105 S.W. 151; State ex rel. Sorenson v. Scoville, 123 Neb. 457, 243 N.W. 269; People ex rel. Chicago Bar Assn. v. Meyerovitz, 278 Ill. 356, 116 N.Y. 189; 81 A.L.R., anno. pp. 1198-1199).

If the judgment be so regarded, then the primary issue in this proceeding is whether, under all the circumstances and upon all the additional proof adduced in this proceeding, the crime of which respondent stands convicted involved such moral turpitude on his part as to require this court to exercise its discretionary power to disbar, suspend from practice or censure the respondent (see 5 Am.Jur., Attorneys at Law, § 279).

Pertinent to the issue of moral turpitude, the respondent may of course offer any available proof which might affect--not the validity or correctness of the judgment of conviction--but the weight to be accorded to it; which might explain his participation or involvement in the crime charged; and which might serve to repel or negative any inference as to his moral turpitude by reason of the conviction.

In our opinion, the cases relied on by the respondent are not to the contrary; indeed, they confirm our view. Thus:

(1) Matter of Donegan, 282 N.Y. 285, 293, 26 N.E.2d 260, 263, supra, holds only: (a) that a federal judgment...