Ginsberg, In re
| Decision Date | 27 April 1956 |
| Citation | 1 N.Y.2d 144,151 N.Y.S.2d 361,134 N.E.2d 193 |
| Parties | , 134 N.E.2d 193 In the Matter of Isidore GINSBERG, an Attorney, Respondent, Association of the Bar of the City of New York, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Frederick H. Block and Frank H. Gordon, New York City, for appellant.
Isidore Ginsberg, Jackson Heights, in pro. per.
On June 22, 1948, respondent, an attorney, was convicted in the County Court of Queens County of the crime of grand larceny in the first degree and was sentenced to a term of imprisonment. Subdivision 4 of section 90 of the Judiciary Law provides that 'Any person being an attorney and counsellor-at-law, who shall be convicted of a felony, shall, upon such conviction, cease to be an attorney and counsellor-at-law, or to be competent to practice law as such.' The unmistakable meaning of those clear words is that after June 22, 1948, respondent was no longer a member of the Bar and no longer competent to practice as such. Such difficulty as we have here results from two later occurring facts: first, that no one saw to it that respondent's name was stricken from the roll of attorneys (see Judiciary Law, § 90, subd. 4, supra); and, second, that on December 20, 1948, respondent's conviction was reversed and a new trial ordered . He has not been retried.
By the present proceeding appellant Bar Association, alleging that respondent stood disbarred despite the two facts above listed, prayed the Appellate Division to take such action as might be proper. The Appellate Division held in effect that respondent's disbarment was incomplete because of a lack of any court order therefor and that the reversal of the criminal conviction left respondent in the same status as if there had been no such conviction. We take a different view.
We think the language above quoted from subdivision 4 of section 90 and the public policy which it expresses accomplishes the automatic removal from the profession of a lawyer convicted of a felony. True, the following sentence in that subdivision ('Whenever any attorney and counsellor-at-law shall be convicted of a felony, there may be presented to the appellate division of the supreme court a certified or exemplified copy of the judgment of such conviction, and thereupon the name of the person so convicted shall, by order of the court, be struck from the roll of attorneys') describes a procedure for striking the lawyer's name from the roll of attorneys. But that procedure, as it seems to us, is no more than a formal recording of the existing fact of disbarment. It is a solemn pronouncement but not a new adjudication. So long as the person convicted is the attorney, the striking of his name from the rolls follows automatically on the presentation to the Appellate Division of the record of conviction. Matter of Donegan, 282 N.Y. 285, 288, 26 N.E.2d 260, 261. Through someone's carelessness that step was never taken as to respondent, but respondent was nonetheless disbarred by statutory command. If the order of disbarment had been entered before the reversal, subdivision 5 of section 90 of the Judiciary Law would have come into play so as to require respondent, despite the reversal, to apply for reinstatement to the Bar. Matter of Kaufmann, 245 N.Y. 423, 430, 157 N.E. 730, 733. We think his position is no better by reason of the lack of a formal order of disbarment. If and when he asks for reinstatement the Appellate Division can consider all the facts and circumstances of the alleged criminal conduct to see if there be 'convincing proof of innocence'. Matter of Kaufmann, supra.
Respondent's argument comes down to this: that the reversal of his conviction wipes out that conviction absolutely and for all purposes. See People v. Palmer, 109 N.Y. 413, 17 N.E. 213; Code Crim.Proc. § 464. Of course that is true as to the future progress of the criminal cause, and as to the continued existence of the sentence imposed. But it cannot be literally true that a reversal on the law alone of a criminal conviction leaves an attorney's record unspotted, particularly when the reversing court 'affirms the findings of fact implicit in the verdict of the jury'.
We conclude that respondent was ipso facto disbarred by the conviction, that the reversal did not automatically restore him to the Bar and that his remedy is to apply for reinstatement.
The order should be reversed and the matter remitted to the Appellate Division for further proceedings not inconsistent with this opinion. The question certified is not answered.
After having been admitted to the Bar and practiced law for 27 years, respondent was convicted of grand larceny in June, 1948. The judgment of conviction was reversed and a new trial granted by the Appellate Division, Second Department, 274 App.Div. 1007, 84 N.Y.S.2d 520, 521. The memorandum decision states that this reversal was due to errors in the charge which 'affected the defendant's substantial rights under an indictment charging larceny by false pretenses.' No certified or exemplified copy of the judgment of conviction was presented to the Appellate Division, First Department, where defendant resided, pursuant to subdivision 4 of section 90 of the Judiciary Law, until after his conviction had been reversed. To the certified copy which was then presented was attached a certificate of the reversal of this conviction. This emasculated the 'conviction' and rendered the certificate of conviction a nullity. People ex rel. Sloane v. Lawes, 255 N.Y. 112, 117, 174 N.E. 80, 81; People v. Van Zile, 159 App.Div. 61, 144 N.Y.S. 287. In consequence, the Appellate Division, First Department, has unanimously confirmed the report of its Referee and dismissed the petition filed by the Association of the Bar of the City of New York. The dismissal was without prejudice, however, so that, regardless of the reversal of the criminal conviction, disciplinary action or disbarment might result if it were to be established by evidence (other than the mere fact of the reversed conviction) that respondent misappropriated the funds which he was charged in the indictment with having taken for his own use.
In the opinion of the Referee, respondent's name could not be stricken from the roll without an order of the court, and no such order could be made on the basis of respondent's conviction after the conviction had ceased to exist.
Even if respondent may have become disqualified to practice law without his name being stricken from the roll of attorneys, his right to do so must be restored upon reversal of the conviction if his conviction was the only thing that deprived him of it. The consequence would be otherwise if he had been suspended or disbarred on the basis of facts found by the Appellate Division in a disbarment proceeding on independent evidence, even on testimony paralleling that which was introduced upon the criminal trial. In disbarment proceedings, all that would be necessary would be to establish his guilt by a preponderance of the evidence, not beyond a reasonable doubt. Here, however, the appellant Bar Association contends that his name should be stricken from the roll without any trial in the Appellate Division solely on the basis of a conviction by a jury acting pursuant to an erroneous charge, which has been reversed upon the ground that it adversely affected his substantial rights. His conviction has been annulled as though it had never been. I am aware that subdivision 5 of section 90 of the Judiciary Law states: 'Upon a reversal of the conviction for felony of an attorney and counsellor-at-law, or pardon by the president of the United States or governor of this state, the appellate division shall have power to vacate or modify such order or debarment.'
In Matter of Kaufmann, 245 N.Y. 423, 157 N.E. 730, in reversing the denial of an application for reinstatement as an attorney and counsellor at law, this court did remit the matter to the Appellate Division to...
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