Anonymous Attorneys v. Bar Ass'n of Erie County

CourtNew York Court of Appeals
Writing for the CourtPER CURIAM; BREITEL
Citation362 N.E.2d 592,393 N.Y.S.2d 961,41 N.Y.2d 506
Parties, 362 N.E.2d 592 In the Matter of ANONYMOUS ATTORNEYS, Appellants, v. BAR ASSOCIATION OF ERIE COUNTY, Respondent. In the Matter of ANONYMOUS, an Attorney, Appellant, v. BAR ASSOCIATION OF ERIE COUNTY, Respondent.
Decision Date05 April 1977

Page 961

393 N.Y.S.2d 961
41 N.Y.2d 506, 362 N.E.2d 592
In the Matter of ANONYMOUS ATTORNEYS, Appellants,
v.
BAR ASSOCIATION OF ERIE COUNTY, Respondent.
In the Matter of ANONYMOUS, an Attorney, Appellant,
v.
BAR ASSOCIATION OF ERIE COUNTY, Respondent.
Court of Appeals of New York.
April 5, 1977.

Page 962

Thomas P. Flaherty and Philip H. Magner, Jr., Buffalo, for appellants.

John B. Walsh, Buffalo, for respondent.

PER CURIAM.

The sole issue before the court is whether incriminating testimony given by an attorney, following a grant of immunity, may be used as evidence against him in a disciplinary proceeding.

The appellants, attorneys admitted to practice in the State of New York, were called to testify before a Grand Jury investigating alleged irregularities in the fixing of traffic tickets in the City Court of Buffalo. The District Attorney requested that they execute waivers of immunity which they declined to do, and the Grand Jury then voted them full immunity pursuant to CPL 50.10. The Grand Jury probe resulted in an indictment against certain officials and, subsequently, the appellants, still retaining immunity, testified at the trial of these officials. Thereafter, they were served with a petition and notice of motion instituted by the respondent Bar Association seeking to have them disciplined for their involvement in the activity concerning which they had testified. After service of the petitions, the appellants commenced an action in the Federal District Court seeking an injunction against prosecution of these disciplinary proceedings. The respondent's motion to dismiss the Federal action was granted on the ground of insufficiency under the abstention doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, and that dismissal was affirmed (Anonymous J. v. Bar Assn. of Erie County, 2 Cir., 515 F.2d 435, cert. den., 423 U.S. 840, 96 S.Ct. 71, 46 L.Ed.2d 60). Thereafter, appellants moved in the Appellate Division for an order dismissing the petitions on the ground that they had been granted immunity from any penalties or forfeitures arising out of the transactions concerning which they had testified. The Appellate Division denied the motion to dismiss and granted leave to appeal to this court on a certified question. We affirm the order of the Appellate Division and answer the certified question in the affirmative.

Initially, we confront the question of statutory construction of the immunity statute. The appellants were granted immunity pursuant to and defined in CPL 50.10 which provides that: 'A person who has been a witness in a legal proceeding, and who cannot, except as otherwise provided in this subdivisi be convicted of any offense or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he gave evidence therein, possesses 'immunity' from any such conviction, penalty or forfeiture. A person who possesses such immunity may nevertheless be convicted of perjury

Page 963

as a result of having given false testimony in such legal proceeding, and may be convicted of or adjudged in contempt as a result of having contumaciously refused to give evidence therein.' The appellants strongly urge that the possible sanctions flowing from the disciplinary proceeding constitute a 'penalty or forfeiture' within the meaning of the statute. Without doubt the sanctions which may be imposed in such proceedings may have serious consequences resulting in impairment of repute, loss of clientele, or, in the case of disbarment, loss of license to practice a profession which is their very source of livelihood. Although serious in consequence, these sanctions are not penalties or forfeitures within the meaning of the Criminal Procedure Law. The penalties and forfeitures encompassed by this immunity are those imposed or sought to be imposed as punishment upon conviction for a criminal offense committed in violation of the Penal Law or other statute of the State (Matter of Klebanoff, 21 N.Y.2d 920, 289 N.Y.S.2d 755, 237 N.E.2d 75, cert. den., 393 U.S. 840, 89 S.Ct. 118, 21 L.Ed.2d 110; Matter of Zuckerman, 20 N.Y.2d 430, 285 N.Y.S.2d 1, 231 N.E.2d 718, cert. den., 390 U.S. 925, 88 S.Ct. 856, 19 L.Ed.2d 985, reh. den., 390 U.S. 975, 88 S.Ct. 1031, 19 L.Ed.2d 1196; People ex rel. Karlin v. Culkin, 248 N.Y. 465, 162 N.E. 487; Matter of Rouss, 221 N.Y. 81, 116 N.E. 782; Matter of Ungar, 27 A.D.2d 925, 282 N.Y.S.2d 155, cert. den., 389 U.S. 1007, 88 S.Ct. 564, 19 L.Ed.2d 603). We hold that disciplinary sanctions are not punishment within the meaning of section 50.10. As Judge Cardozo explained in Matter of Rouss (supra, 221 N.Y. pp....

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43 practice notes
  • Carey v. Kitson
    • United States
    • New York Supreme Court Appellate Division
    • April 4, 1983
    ...with "conviction" (see People v. Rappaport, 47 N.Y.2d 308, 313, 418 N.Y.S.2d 306, 391 N.E.2d 1284; Matter of Anonymous Attorneys, 41 N.Y.2d 506, 510, 393 N.Y.S.2d 961, 362 N.E.2d 592; Matter of Second Additional Grand Jury of County of Kings [Cioffi], 8 N.Y.2d 220, 224, 203 N.Y.S.2d 841, 16......
  • March, In re, No. 49022
    • United States
    • Supreme Court of Illinois
    • April 3, 1978
    ...be introduced at disciplinary proceedings without violating the Federal or New York constitutions. (In re Anonymous Attorneys (1977), 41 N.Y.2d 506, 393 N.Y.S.2d 961, 362 N.E.2d 592.) The court believed this result to be required by the State's interest in regulating the legal [71 Ill.2d 39......
  • Fulginiti v. Cape May County Sheriff's Dept.
    • United States
    • New Jersey Superior Court – Appellate Division
    • February 25, 1985
    ...or penalty. [Id. at 135-136, 376 A.2d 1194 (emphasis in original) ]. Likewise in Anonymous Attorneys v. Bar Association of Erie County, 41 N.Y.2d 506, 393 N.Y.S.2d 961, 362 N.E.2d 592 (1977), a statute substantially similar to N.J.S.A. 11:1-15, although not using the word "punished," was he......
  • Special Prosecutor (Onondaga County) v. G. W.
    • United States
    • United States State Supreme Court (New York)
    • May 19, 1978
    ...(1961); Matter of Gold v. Menna, 25 N.Y.2d 475, 481, 307 N.Y.S.2d 33, 37, 255 N.E.2d 235, 238 (1969); Matter of Anonymous Attorneys, 41 N.Y.2d 506, 507, 508-10, 393 N.Y.S.2d 961, 962-964, 362 N.E.2d 592, 594, 596, see also, Immunity Statutes and the Constitution, 68 Columbia L.Rev. 959 (196......
  • Request a trial to view additional results
43 cases
  • Carey v. Kitson
    • United States
    • New York Supreme Court Appellate Division
    • April 4, 1983
    ...with "conviction" (see People v. Rappaport, 47 N.Y.2d 308, 313, 418 N.Y.S.2d 306, 391 N.E.2d 1284; Matter of Anonymous Attorneys, 41 N.Y.2d 506, 510, 393 N.Y.S.2d 961, 362 N.E.2d 592; Matter of Second Additional Grand Jury of County of Kings [Cioffi], 8 N.Y.2d 220, 224, 203 N.Y.S.2d 841, 16......
  • March, In re, No. 49022
    • United States
    • Supreme Court of Illinois
    • April 3, 1978
    ...be introduced at disciplinary proceedings without violating the Federal or New York constitutions. (In re Anonymous Attorneys (1977), 41 N.Y.2d 506, 393 N.Y.S.2d 961, 362 N.E.2d 592.) The court believed this result to be required by the State's interest in regulating the legal [71 Ill.2d 39......
  • Fulginiti v. Cape May County Sheriff's Dept.
    • United States
    • New Jersey Superior Court – Appellate Division
    • February 25, 1985
    ...or penalty. [Id. at 135-136, 376 A.2d 1194 (emphasis in original) ]. Likewise in Anonymous Attorneys v. Bar Association of Erie County, 41 N.Y.2d 506, 393 N.Y.S.2d 961, 362 N.E.2d 592 (1977), a statute substantially similar to N.J.S.A. 11:1-15, although not using the word "punished," was he......
  • Special Prosecutor (Onondaga County) v. G. W.
    • United States
    • United States State Supreme Court (New York)
    • May 19, 1978
    ...(1961); Matter of Gold v. Menna, 25 N.Y.2d 475, 481, 307 N.Y.S.2d 33, 37, 255 N.E.2d 235, 238 (1969); Matter of Anonymous Attorneys, 41 N.Y.2d 506, 507, 508-10, 393 N.Y.S.2d 961, 962-964, 362 N.E.2d 592, 594, 596, see also, Immunity Statutes and the Constitution, 68 Columbia L.Rev. 959 (196......
  • Request a trial to view additional results

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