Steinberg, Matter of

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: PER CURIAM; All concur except SMITH; SMITH
• Citation: Steinberg, Matter of, 528 N.Y.S.2d 375, 137 A.D.2d 110 (N.Y. App. Div. 1988)
• Decision Date: 19 May 1988
• Parties: In the Matter of Joel Barnet STEINBERG, an Attorney and Counselor-at-Law. Departmental Disciplinary Committee for the First Judicial Department, Petitioner. Joel Barnet Steinberg, Respondent.

Page 375

528 N.Y.S.2d 375

137 A.D.2d 110

In the Matter of Joel Barnet STEINBERG, an Attorney and Counselor-at-Law Departmental Disciplinary Committee for the First Judicial Department, Petitioner Joel Barnet Steinberg, Respondent.

Supreme Court, Appellate Division First Department.

May 19, 1988.

Michael A. Gentile, New York City, for petitioner.

Marshall G. Kaplan, Brooklyn, for respondent.

Before MURPHY, P.J., and SULLIVAN, ROSS, ROSENBERGER and SMITH, JJ.

PER CURIAM.

After an investigation initiated in this court, the Departmental Disciplinary Committee (DDC) has moved for an order revoking respondent's admission to the practice of law. Respondent was admitted in the First Department on July 7, 1970.

The motion is made pursuant to Judiciary Law § 90(2), and is predicated upon respondent's failure to comply with the Rules of the Court of Appeals for the admission of attorneys, as amended January 1, 1970, and upon his failure to disclose to this court that he had not complied with those Rules.

On May 13, 1970 respondent filed with this court's Committee on Character and Fitness a sworn application for admission, to which he attached a certificate issued by the New York State Board of Law Examiners, dated March 17, 1970, permitting respondent to apply for admission to practice in New York without obtaining a passing grade on the bar examination. The application to the Board of Law Examiners for the certificate of dispensation was apparently destroyed many years ago and is not available for review. The DDC's motion is supported, however, by other available documents, such as respondent's law school records, his application for admission filed with this court, and copies of 1970 letters, received after the return date of the motion, from the then Associate Dean of New York University School of Law to the State Board of Law Examiners and to respondent.

Part 526 of the then Rules of the Court of Appeals (22 NYCRR) relieved certain otherwise qualified candidates for admission to the bar from taking the bar examination if certain qualifications were met. An applicant had to have served in the armed forces for at least 12 months after January 1, 1963, and been honorably discharged; at the time of his induction he had to have been a resident of the state for the preceding six months; after January 1, 1963 and after completing in an approved law school two-thirds of the requirements for graduation, his course of law school study had to have been interrupted by active service in the armed forces for at least twelve months; or after graduating he was prevented from taking two examinations following the completi of his requirements for graduation by active service in the armed forces.

While respondent met certain of these requirements he apparently was not eligible under two of the conditions. When he left law school in May 1964, at the end of his second year, he was "dropped for poor scholarship", according to a certificate signed by the Acting Associate Dean of New York University School of Law. Thus, his law school studies were not "interrupted by active service in the armed forces." He did not enter the United States Air Force, voluntarily, until April 1965, approximately eleven months after he had been academically dismissed.

Furthermore, when respondent left law school he had not completed two-thirds of his academic requirements. While he had taken 57 of the 80 course hours required for graduation, he had failed two of these courses (6 hours) and obtained unsatisfactory grades in another eight courses (22 hours). When he returned to law school in 1968, as a condition of re-admission, respondent had to make up these courses. He graduated in February 1970.

In response to the petition respondent requested assignment of counsel. On December 28, 1987, we denied the application with leave to renew upon a proper showing and directed respondent to respond to the application to revoke his license within thirty days. The day after the order was issued this court received a letter from respondent in which he acknowledged his ineligibility for assignment of counsel, and requested a reasonable time to respond to the petition. We have now received his affidavit in opposition, as well as the DDC's reply.

Respondent argues that this court cannot revoke a certificate issued by the State Board of Law Examiners, and that he did not lie to the Board in obtaining the certificate. He denies the allegations in the moving papers, and concludes by arguing that this application has been brought only because he has been charged with a notorious crime. Noteworthy is his complete failure to deny the DDC's claim that he was ineligible for the Part 526 waiver of the bar examination requirement.

Judiciary Law § 90(2), upon which the DDC relies, provides that this court is "authorized to revoke [the admission to practice of an attorney] for any misrepresentation or suppression of any information in connection with the application for admission to practice." We note also that the application which respondent submitted to the Committee on Character and Fitness contains a warning to the effect that the suppression of any information could lead to revocation of the license to practice. Thus, the issue before us is whether respondent misrepresented or suppressed any information in connection with his application.

This case presents, to say the least, a novel situation. On the basis of all the documents before us respondent was clearly ineligible for admission without having passed the bar examination because, as already noted, he had not met the minimum requirement of Part 526 in two important respects. In his papers here he has not disputed any of the underlying facts, but does deny, generally, having made any misrepresentations in his application for a certificate waiving the passing of the bar examination. Unfortunately, as already noted, the application to the State Board of Law Examiners, which issued the waiver, is no longer available. Thus, we do not know the nature of the precise personal representations respondent actually recorded on his application.

The two letters from the then Associate Dean at New York University School of Law are particularly significant. The letter to the Board of Law Examiners dated February 6, 1970 states, in pertinent part, "Prior to Mr. Steinberg's entry into the Armed Forces he completed four full-time terms at the Law School, and then completed two-thirds of the residence credit required for graduation by the Court of Appeals Rules. During this period, Mr. Steinberg was enrolled in courses totalling 57 credits." In a letter to respondent dated the same day the Associate Dean states, inexplicably, "You will note that paragraph three of my letter does not state in so many words that you had completed two-thirds of the graduation requirements prior to your entry into the Armed Services." The Associate Dean acknowledges, "In terms of total hours of credit earned at that time, you had at that point only 51 credits * * *. You did, however, attend for two full years and you were regularly enrolled in courses totaling 57 credits, as stated in the attached letter."

The letter went on, "It thus appears to me that whether or not you meet the conditions of Rule VI-a is a matter of interpretation. My letter to the Board contains nothing inaccurate, however, if future inquiry is addressed to the number of hours for which credit had been earned, I should, of course, have to respond." ¹ The Associate Dean's letter concludes, "You may wish to inquire directly of the Board or you may wish to remain silent and hope that they will simply act favorably on your application as it stands."

While the Associate Dean's opinion that the letter does not conceal the truth is certainly open to question, for purposes of this application it clearly reveals that respondent was aware that he was not eligible for the waiver on academic grounds, and obviously concealed his ineligibility from the Board.

Even without this subsequently discovered documentary evidence implicating respondent in the suppression of the actual facts surrounding his ineligibility, there are at least two basic flaws in his unelaborated denial of any wrongdoing. Ordinarily, a presumption of regularity attaches to the acts of all public officials. (See, Fisch New York Evidence, § 1134; and cases cited therein). Thus, in the absence of proof to the contrary, the Board of Law Examiners must be presumed to have acted honestly and in accordance with law and to have done nothing contrary to official duty in processing respondent's application. ( See, Matter of Whitman, 225 N.Y. 1, 9, 121 N.E. 479; Matter of Marcellus, 165 N.Y. 70, 77, 58 N.E. 796.) In the absence of substantial evidence to the contrary, the presumption...