Rowe, Matter of

• Decision Date: 18 November 1992
• Parties: , 604 N.E.2d 728 In the Matter of Robert T. ROWE, a Suspended Attorney, Appellant. Grievance Committee for the Second and Eleventh Judicial Districts, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 179

590 N.Y.S.2d 179

80 N.Y.2d 336, 604 N.E.2d 728

In the Matter of Robert T. ROWE, a Suspended Attorney Appellant. Grievance Committee for the Second and Eleventh Judicial Districts, Respondent.

Court of Appeals of New York.

Nov. 18, 1992.

William M. Brooks, Huntington, for appellant.

Mark F. Dewan and Robert H. Straus, Brooklyn, for respondent.

OPINION OF THE COURT

SIMONS, Acting Chief Judge.

Respondent, an attorney licensed to practice law in this State since 1956, has been found guilty of eight charges of misconduct and disbarred. He raises two issues meriting discussion on this appeal. First, he claims that he cannot be found unfit to practice law because of acts committed while he was mentally ill and, second, he contends that the Court cannot discipline him for publishing a law-related article during his suspension from practice. We conclude that the Court properly considered respondent's conduct while he was ill when determining fitness but that its imposition of discipline for publication of the article interfered with respondent's constitutional right to free speech.

I

In 1978, respondent killed his wife and three children and was charged with four counts of second degree murder. A court found him not guilty by reason of mental disease or defect and ordered him placed in a psychiatric hospital. In 1980, respondent was discharged from the Creedmoor Psychiatric Center, and in 1988, he was discharged from mandated out-patient psychiatric care.

Following his acquittal respondent was suspended from the practice of law because of his mental disability. His subsequent applications for reinstatement were unsuccessful but in 1989, we reversed an Appellate Division order denying reinstatement and remitted the matter for a hearing to determine whether respondent's disability had been removed and whether, based on the record, he was fit to practice law (Matter of Rowe, 73 N.Y.2d 336, 540 N.Y.S.2d 231, 537 N.E.2d 616.

On remittal, petitioner Grievance Committee for the Second and Eleventh Judicial Districts filed eight charges of misconduct against respondent and a Special Referee, appointed by the Appellate Division, found respondent guilty of all charges after a hearing. The Court confirmed the Referee's report, rejected respondent's application for reinstatement and disbarred him. This appeal followed, 174 A.D.2d 159, 578 N.Y.S.2d 631.

II

The first four charges of misconduct relate to the four killings and allege respondent violated Code of Professional Responsibility DR 1-102(A)(6) (now DR 1-102[A][7] [22 NYCRR 1200.3(a)(7) ], which prohibits a lawyer from engaging in "conduct that adversely reflects on [the lawyer's] fitness to practice law." Respondent contends that he should not be disciplined for violating this rule because his conduct was not criminally culpable.

The Code of Professional Responsibility, promulgated by the American and New York State Bar Associations and implemented by the rules of the Appellate Divisions, counsels that the continued existence of a free and democratic society depends on a concept of justice based upon the rule of law. Lawyers play a critical role in sustaining the rule of law and thus it is necessary that the legal profession maintain its unique ability to do so by earning the respect and confidence of society (Code of Professional Responsibility, Preamble and Preliminary Statement, Judiciary Law, Appendix). To this end, the courts are charged with the responsibility of insisting that lawyers exercise the highest standards of ethical conduct and insuring that only those fit to practice law are admitted to the Bar. Conduct that tends to reflect adversely on the legal profession as a whole and to undermine public confidence in it warrants disciplinary action (see, Matter of Holtzman, 78 N.Y.2d 184, 191, 573 N.Y.S.2d 39, 577 N.E.2d 30, cert. denied --- U.S. ----, 112 S.Ct. 648, 116 L.Ed.2d 665; Matter of Nixon, 53 A.D.2d 178, 181-182, 385 N.Y.S.2d 305; cf., Matter of Mitchell, 40 N.Y.2d 153, 156, 386 N.Y.S.2d 95, 351 N.E.2d 743).

Respondent contends that though he has committed four homicides he was not mentally responsible for his acts and therefore those acts should not be considered in judging his fitness to be reinstated to the Bar. His argument fails to recognize the distinction between conduct that is criminal and conduct that disqualifies an attorney from entitlement to practice law. A disciplinary proceeding is concerned with fitness to practice law, not punishment. Criminal culpability is not, therefore, controlling (see, Matter of Samuels, 22 A.D.2d 564, 567, 257 N.Y.S.2d 373, cert. denied 383 U.S. 954, 86 S.Ct. 1219, 16 L.Ed.2d 216). The primary concern of a disciplinary proceeding is the protection of the public in its reliance on the integrity and responsibility of the legal profession (Matter of Levy, 37 N.Y.2d 279, 282, 372 N.Y.S.2d 41, 333 N.E.2d 350; Matter of Kahn, 38 A.D.2d 115, 124, 328 N.Y.S.2d 87, affd. 31 N.Y.2d 752, 338 N.Y.S.2d 434, 290 N.E.2d 435). Thus, the inquiry is not directed to the attorney's subjective mental processes, but to the objective and qualitative nature of the conduct, for it is the acts themselves which the public sees and which guide its perception of the Bar (see, Matter of Gould, 4 A.D.2d 174, 175, 164 N.Y.S.2d 48, lv denied 3 N.Y.2d 708; see generally, Note, Disbarment: Non-Professional Conduct Demonstrating Unfitness to Practice, 43 Cornell L.Q. 489; 6 N.Y.Jur.2d, Attorneys at Law, § 19). Although respondent was not criminally responsible for his acts, they tended to undermine public confidence in the Bar and, as such, they properly provided a basis for disciplinary action. Accordingly, charges one through four were properly sustained by the Appellate Division.

III

The eighth charge alleges that respondent violated the Appellate Division's order of suspension by publishing an article in the Journal of Urban Psychiatry entitled The Right to Refuse Treatment: Therapeutic Orgy or Rotting With Your Rights On?, and by identifying himself in the article as "Robert T. Rowe, J.D." The Appellate Division's order, which substantially restates the provisions required by section 90(2) of the Judiciary Law, directed respondent to desist and refrain "(1) from practicing law in any form * * * (2) from appearing as an attorney or counselor-at-law before any court * * * (3) from giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) from holding himself out in any way as an attorney and counselor-at-law".

Respondent's article did not violate subdivision (1) of the order. The practice of law involves the rendering of legal advice and opinions directed to particular clients (see, El Gemayel v. Seaman, 72 N.Y.2d 701, 706, 536 N.Y.S.2d 406, 533 N.E.2d 245; Matter of New York County Lawyers' Assn. v. Dacey, 28 A.D.2d 161, 173-174, 283 N.Y.S.2d 984 [Stevens, J.P., dissenting], rev'd. on dissenting opn. below 21 N.Y.2d 694, 287...