Glucksman, Matter of

• Decision Date: 05 May 1977
• Parties: In the Matter of Jerome O. GLUCKSMAN, an Attorney.
• Court: New York Supreme Court — Appellate Division

Page 191

394 N.Y.S.2d 191

57 A.D.2d 205

In the Matter of Jerome O. GLUCKSMAN, an Attorney.

Supreme Court, Appellate Division, First Department.

May 5, 1977.

Jerome O. Glucksman, pro se.

James D. Porter, Jr., New York City, for petitioner.

Before KUPFERMAN, J. P., and LUPIANO, SILVERMAN and MARKEWICH, JJ.

PER CURIAM:

This is a motion for an order vacating an order of this Court dated September 23, 1971, which struck movant's name from the roll of attorneys and counsellors-at-law of the State of New York (37 A.D.2d 290, 324 N.Y.S.2d 561). Movant was admitted to the Bar in the First Department in 1934. In May, 1971, he was convicted in the Supreme Court of the crimes of conspiracy to extort and attempted extortion, both of which are felonies. By reason of that conviction he automatically ceased to be a member of the Bar pursuant to subdivision 4 of section 90 of the Judiciary Law. "The law is settled that upon a conviction for felony a lawyer is ipso facto disbarred and no further action, judicial or otherwise, is required to constitute the fact (Matter of Ginsberg, 1 N.Y.2d 144, 151 N.Y.S.2d 361, 134 N.E.2d 193; cf. Matter of Donegan, 282 N.Y. 285, 26 N.E.2d 260)" (Matter of Barash, 20 N.Y.2d 154, 157, 281 N.Y.S.2d 997, 1000, 228 N.E.2d 896, 898 (1967)). "Although subdivision 4 of section 90 provides for automatic disbarment upon conviction (citation) respondent's constitutional guarantee of due process was safeguarded by his jury trial and appellate review" (Matter of Abrams, 38 A.D.2d 334, 336, 329 N.Y.S.2d 364, 366 (1st Dept., 1972)). Thus, in the case of conviction of a crime deemed to be a felony under New York law, the Court's discretion under this legislative enactment is foreclosed and an attorney's conviction of such crime is conclusive as to his unfitness to practice law (Matter of Keogh, 25 A.D.2d 499, 267 N.Y.S.2d 87 (2nd Dept., 1965) mod. on other grounds 17 N.Y.2d 479, 266 N.Y.S.2d 984, 214 N.E.2d 163 (1965)).

Subdivision 5 of section 90 of the Judiciary Law provides:

"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."

Therefore, to invoke the power of this Court, it is necessary that one of the specified conditions be shown reversal of the felony conviction or a pardon by one of the designated officials (cf. Matter of Edward S. Moran, Jr., 35 A.D.2d 799 (1st Dept., 1970)). Movant not only fails to demonstrate the existence of such condition, but predicates his claim to consideration for reinstatement on the newly enacted Sections 750-755 of Article 23-A of the Correction Law, effective January 1, 1977, entitled "Licensure and Employme of Persons Previously Convicted of One or More Criminal Offenses " (L.1976, c. 931). In a memorandum issued on approving the Bill, the Governor declared that it "is designed to establish reasonable procedures to prevent the unfair discrimination against former criminal offenders in regard to licensure and employment. . . . The bill in no way requires the hiring of former offenders, but provides reasonable standards to be applied by public agencies and private employers when considering applications by former offenders. . . . Under the bill, a license or employment could not be denied an individual on the basis of a previous criminal conviction, unless the criminal conduct of which he was convicted has a direct bearing upon his ability or fitness to perform one or more of the responsibilities or duties necessarily related to the license or employment sought, or unless granting the application would pose an unreasonable risk to property or the health or safety of others. . . . The great expense and time involved in successfully prosecuting and incarcerating the criminal offender is largely wasted if upon the individual's return to society his willingness to assume a law-abiding and...