In the Matter of Joel R. Brandes, a disbarred attorney, Appellant.BriefN.Y.September 8, 2016To Be Argued By: ROBERT H. CABBLE Time Requested: 30 Minutes APL-2016-00044 Appellate Division Second Department Docket No. 1999-07006 Court of Appeals STATE OF NEW YORK In the Matter of JOEL R. BRANDES, a disbarred attorney, Appellant. BRIEF FOR RESPONDENT d MITCHELL T. BORKOWSKY ROBERT H. CABBLE, Assistant Counsel NYS GRIEVANCE COMMITTEE FOR THE TENTH JUDICIAL DISTRICT 150 Motor Parkway, Suite 102 Hauppauge, New York 11788 Telephone: (631) 231-3775 Facsimile: (631) 231-3775 Attorneys for Respondent June 23, 2016 TABLE OF CONTENTS TABLE OF AUTHORITIES .............................................................................iii-xii PRELIMINARY STATEMENT ............................................................................. 1 STATEMENT OF FACTS....................................................................................... 3 The Disbarment of Brandes............................................................................ 3 Brandes’ November 8, 2010 Reinstatement Application............................... 8 Brandes’ November 18, 2013 Reinstatement Application...........................12 POINT ONE BRANDES VIOLATED THE CONDITIONS OF THE ORDER DISBARRING HIM BY ENGAGING IN THE PRACTICE OF LAW UNDER THE GUISE OF PROVIDING PARALEGAL SERVICES AND FAILED TO ESTABLISH BY CLEAR AND CONVINCING PROOF THAT HE POSSESSES THE CHARACTER AND FITNESS FOR REINSTATEMENT TO THE BAR.................................................... 21 A. Law Relating to the Reinstatement of Disbarred Attorneys................... 21 B. The Record Supports The Appellate Division’s Determination............. 27 C. The Practice of Law - General Principles...............................................32 D. Brandes Provided Legal Services to Clients...........................................35 E. Disbarred Attorneys Are Not The Same As Lay Persons And May Not Engage In All Law-Related Activities Which Nonlawyers May Perform.......................................................................40 i POINT TWO THE DENIAL OF BRANDES’ REINSTATEMENT APPLICATION SATISFIED APPLICABLE DUE PROCESS STANDARDS.................... 50 A. Due Process - General Principles............................................................ 50 1. No Property Interest in Reinstatement............................................... 51 2. Procedural Due Process in Attorney Admissions............................. 54 3. Procedural Due Process in Reinstatement of Disbarred Attorneys.. 56 4. Substantive Due Process.................................................................... 63 POINT THREE BRANDES SUFFERED NO DEPRIVATION OF EQUAL PROTECTION OF THE LAW..................................................................... 66 POINT FOUR BRANDES SUFFERED NO DEPRIVATION OF FIRST AMENDMENT PRIVILEGES.................................................................... 71 POINT FIVE THE APPELLATE DIVISION PROPERLY DETERMINED THAT BRANDES VIOLATED THE SPIRIT, IF NOT THE LETTER, OF JUDICIARY LAW §478.............................................................................. 73 CONCLUSION....................................................................................................... 76 ii TABLE OF AUTHORITIES CASES PAGE Abberbock v. County of Nassau, 213 AD2d 691 (2d Dept), appeal denied 86 NY2d 708 (1995)....................................................................... 67 Abramson v. Gettel, 607 Fed Appx 101 (2d Cir 2015).......................................... 69 Abrams v. Bronstein, 33 NY2d 488 (1974)............................................................ 66 Analytical Diagnostic Labs, Inc. v. Kusel, 626 F3d 135 (2d Cir 2010).................68 Application of New York County Lawyers Association, 273 AD 524 (1st Dept. 1948), affirmed sub nom 299 NY 728 (1949) ................................ 49 Application of Thom, 33 NY2d 609 (1973).............................................................71 Board of Regents v. Roth, 408 US 564 (1972)...................................................... 52 Bower Associates v. Town of Pleasant Valley, 2 NY3d 617 (2004).......... 50, 52, 64 Brightonian Nursng Home v. Daines, 21 NY3d 570 (2013)........................... 64, 65 Buckley v. Slocum Dickson Medical Group, 111 F Supp3d 218 (ND NY 2015)......................................................................................................... 37 City of Cleburne v. Cleburne Living Center, 473 US 432 (1985)......................... 66 Clubside Inc. v Valentin, 468 F3d 144 (2d Cir 2006).......................................50, 69 County of Sacramento v. Lewis, 523 US 833 (1998)..................................50, 63, 64 Dacey v. New York County Lawyers’ Association, 290 F Supp 835 (SD NY 1968), affd 423 F2d 188 (2nd Cir 1969), cert denied 398 US 929 (1970).................................................................................................. 51 iii Daniels v. Williams, 474 US 327 (1986)................................................................ 64 Daxor Corp. v. State Department of Health, 90 NY2d 89 (1997)......................... 53 Deas v. Levitt, 73 NY2d 525 (1989)....................................................................... 52 Dorsey v. Stuyvesant Town Corp., 299 NY 512 (1947), cert denied 339 US 981 (1950).................................................................................................. 66 El Gemayel v. Seaman, 72 NY2d 701 (1988)............................................ 34, 35, 36 Erdmann v. Stevens, 458 F2d 1205 (2d Cir 1972)................................................. 56 Ex Parte Garland 71 US 333 (1867)...................................................................... 26 Fahs Construction Group, Inc. v. Gray, 725 F3d 289 (2d Cir 2013).................... 67 Farb v. Baldwin Union Free School District, 2011 US Dist LEXIS 109006 (ED NY, Sept 26, 2011, No. 05-CV-0596 [JS/ETB])............................... 44 Finn v. Anderson, 592 Fed Appx 16 (2d Cir 2014)................................................ 69 Fortress Bible Church v. Feiner, 694 F3d 208 (2d Cir 2012)............................... 68 Gagliardi v. Village of Pawling, 18 F3d 188 (2d Cir 1994).................................. 53 Giordano v. City of New York, 274 F3d 740 (2d Cir 2001)................................... 68 Goldfarb v. Virginia State Bar, 421 US 773 (1975).............................................. 51 Gonzalez-Fuentes v. Molina, 607 F3d 864 (1st Cir 2010)...................................... 65 Grune v. Rodrigues, 176 F3d 27 (2d Cir 1999)...................................................... 64 Harlen Associates v. Incorporated Village of Mineola, 273 F3d 494 (2d Cir 2001)........................................................................................................... 67 iv Henig v Quinn Emanuel Urquhart & Sullivan LLP 2015 US Dist LEXIS 172823 (SD NY, Dec 30, 2015, No. 13-CV-1432 (RA).............................38 Henry v. City of New York, 2016 US App LEXIS 2999 (2d Cir, Feb 22, 2016, No. 15-201-CV)................................................................. 50 Hogan v. Culkin, 18 NY2d 330 (1966).................................................................. 75 Hunter v. Supreme Court, 951 F Supp 1161 (D NJ 1996), affd 118 F3d 1575 (1997)....................................................................................... 55 In re Blake, 2016 OK 33 (2016)............................................................................. 46 In re Christianson, 215 NW2d 920 (ND 1974)...................................................... 46 In re County of Erie, 473 F3d 413 (2d Cir 2007)................................................... 34 In re Griffiths, 413 US 717 (1973)......................................................................... 51 In re Kandekore, 460 F3d 276 (2d Cir 2006), cert denied 549 US 1219 (2007)............................................................................................... 58 In re Loss, 119 Ill2d 186, 518 NE2d 981 (1987), appeal dismissed 484 US 999 (1988)................................................................................. 59 In re Mitchell, 901 F2d 1179 (3rd Cir 1990)........................................................... 46 In re Peterson, 175 NW2d 132 (ND 1970)............................................................ 47 In re Reinstatement of Wiederholt, 24 P3d 1219 (Alaska 2001)........................... 59 In re Roel 3 NY2d 224 (1957)......................................................................... 34, 49 Kaluczky v. City of White Plains, 57 F3d 202 (2d Cir 1995)................................. 63 Konigsberg v. State Bar of California, 353 US 252 (1957)................................... 24 v Law Students Civil Rights Research Council, Inc. v. Wadmond, 401 US 154 (1971)............................................................... 23, 24, 51 Local 342, Long Island Public Services Employees v. Town Board of Huntington, 31 F3d 1191 (2d Cir 1994).................................................. 50 Lowe v SEC, 472 US 181 (1985) ..................................................................... 71, 72 Matter of Anonymous, 74 NY2d 938 (1989).................................................... 24, 27 Matter of Anonymous, 78 NY2d 227 (1991).......................................................... 25 Matter of Anonymous, 79 NY2d 782 (1991).......................................................... 27 Matter of Anonymous, 116 AD3d 62 (1st Dept 2014)............................................ 25 Matter of Brandes, 292 AD2d 129 (2nd Dept 2002) ............................................ 1, 3 Matter of Brandes, 2009 NY Slip Op 87923(U) (2d Dept 2009).............................1 Matter of Brandes, 2011 NY Slip Op 70970(U) (2d Dept 2011).............................2 Matter of Brandes, 2012 NY Slip Op 93875(U) (2d Dept 2012).............................2 Matter of Brandes, 2014 NY Slip Op 68827(U) (2d Dept 2014).............................2 Matter of Brandes, 2015 NY Slip Op 81096(U) (2d Dept 2015).......................1, 38 Matter of Brandes, 2016 NY Slip Op 64892 (U) (Ct App 2016).............................2 Matter of Citrin, 94 NY2d 459 (2000), motion for clarification denied, 95 NY2d 897 (2000).................................................................................. 57 Matter of Dondi, 63 NY2d 331 (1984)................................................................... 25 Matter of Duncan, 83 SC 186, 65 SE 210 (1909).................................................. 34 vi Matter of Fischetti v. Scherer, 44 AD3d 89 (1st Dept 2007), appeal dismissed 9 NY3d 1030 (2008).................................................................. 71 Matter of Gordon, 48 NY2d 266 (1979)................................................................ 51 Matter of Kass, 39 AD2d 352 (2d Dept 1972)....................................................... 76 Matter of Katz, 35 AD2d 159 (1st Dept 1970).................................................. 18, 44 Matter of Knight v. Bratton, 48 Misc3d 536 (Sup Ct New York County 2015)..........................................................................................68 Matter of Licato, 104 AD2d 20 (1st Dept 1984)............................................... 32, 57 Matter of Mairs, 102 AD2d 146 (1st Dept 1984).................................................... 57 Matter of Raskin, 217 AD2d 187 (2d Dept 1995).................................................. 41 Matter of Ratafia, 268 AD 987 (2d Dept 1944).................................................... 44 Matter of Rosenbluth, 36 AD2d 383 (1st Dept 1971)........................................18, 41 Matter of Rouss, 221 NY 81 (1917), cert denied 246 US 661 (1918)................... 26 Matter of Rowe, 73 NY2d 336 (1989).................................................................... 56 Matter of Rowe, 80 NY2d 336 (1992), cert denied 508 US 928 (1993)....................................................................... 20,34,35,36,40,72 Matter of Sedacca v. Mangano, 18 NY3d 609 (2012).......................................... 75 Matter of Sugerman, 51 AD2d 170 (1st Dept) appeal denied 39 NY2d 707 (1976).............................................................................................. 26 Matter of Sutherland, 252 AD 620 (1st Dept 1937)............................................... 43 Matter of Treadwell, 175 AD 833 (1st Dept 1916)................................................. 40 vii Medicon Diagnostic Laboratories, Inc. v. Perales, 74 NY2d 539 (1989)...... 54-55 Mildner v. Gullota, 405 F Supp 182 (ED NY 1975), judgment affirmed 423 US 901 (1976)..................................................26, 56 Mitchell v. Association of the Bar, 40 NY2d 153 (1976)....................................... 24 Moran Towing Corp. v. Urbach, 99 NY2d 443 (2003)......................................... 65 Mordukhaev v. Daus, 457 Fed Appx 16 (2d Cir 2012).......................................... 58 Natale v. Town of Ridgefield, 170 F3d 258 (2d Cir 1999)............................... 50, 64 Neilson v. DeAngelis, 409 F3d 100 (2d Cir 2005)................................................. 69 New Covenant Charter School Education Faculty Association v. Board of Trustees of the State University of New York 30 Misc 3d 1205(A) (Sup Ct Albany County 2010)................................................................................ 68 New York County Lawyers’ Association v. Dacey, 28 AD2d 161 (1st Dept), revd on dissenting opn below 21 NY2d 694 (1967)................. 34, 35, 36 New York Post Corp. v. Leibowitz, 2 NY2d 677 (1957)........................................ 75 Opp Cotton Mills v. Administrator, 312 US 126 (1941)........................................ 55 Pappas v. Town of Enfield, 602 Fed Appx 35 (2d Cir 2016)................................. 68 People v. Alfani, 227 NY 334 (1919).................................................................... 33 People v. Jakubowitz, 184 Misc 2d 559 (Sup Ct Bronx County 2000)................. 33 People v. Lingle, 16 NY3d 621 (2011).................................................................. 65 People v. Ryan, 274 NY 149 (1937)....................................................................... 74 People ex rel Wood v. Lacombe, 99 NY 43 (1885)................................................ 74 viii Port Jefferson Health Care Facility v. Winn, 94 NY2d 284 (1999), cert denied 420 US 1276 (2000)............................................................................. 67 Proopis v. Equitable Life Assurance Society (183 Misc 379 (Sup Ct Kings County 1944).................................................................................. 42 Purze v. Village of Winthrop Harbor, 286 F3d 452 (7th Cir 2002) abrogated on other grounds in Appell v. Spiridon, 531 F3d 138 (2d Cir 2008)..................... 69 Royster Guano Co. v. Virginia, 253 US 412 (1920).............................................. 66 RRI Realty Corp. v. Village of Southampton, 870 F2d 911 (2d Cir), cert denied 493 US 893 (1989)......................................................... 52, 53 Ruston v. Town Board of the Town of the Town of Skaneateles, 610 F3d 55 (2d Cir), cert denied 562 US 1108 (2010)............................................................. 69 Schware v. Board of Law Examiners of New Mexico, 353 US 232 (1957)......... 54 Shatney v. Laporte, 2016 US App LEXIS 3001 (2d Cir, Feb 22, 2016, No. 15-600).................................................................................................. 67 Spanos v. Skouras Theatres Corp., 364 F2d 161 (2d Cir 1966), cert denied, 385 US 987 (1966)..................................................... 35 Spivak v. Sachs, 16 NY2d 163 (1965)...................................................32-33, 34, 35 State ex rel. Counsel for Discipline of the Nebraska Supreme Court v. Mellor, 271 Neb 482, 712 NW2d 817 (2006).................................... 58, 59 Statewide Grievance Committee v. Ganim, 311 Conn 430, 87 A3d 1078 (2014)...................................................................................................................... 59 Tang v. Appellate Division of New York Supreme Court, First Department, 373 F Supp 800 (SD NY 1972), affd 487 F2d 138 (2d Cir 1973), cert denied 416 US 906 (1974)............................................... 25 ix Town of Orangeburg v. Magee, 88 NY2d 41 (1996)............................................. 64 Under 21, Catholic Home Bureau for Dependent Children v. New York 65 NY2d 344 (1985)............................................................................................... 66 United States v. Cutler, 815 F Supp 599 (ED NY 1993)....................................... 71 Village of Willowbrook v. Olech, 528 US 562 (2000)........................................... 68 Walton v. New York State Department of Correctional Services, 13 NY3d 475 (2009)......................................................................................... 66, 67 Willner v. Committee on Character and Fitness, 373 US 96 (1963)..................... 55 Witt v. Village of Mamaroneck, 992 F Supp2d 350 (SD NY 2014), affd 2016 US App LEXIS 7776 (2d Cir, Apr 27, 2016, No. 15-1338)............. 69-70 Worley v. Alabama State Bar, 572 So2d 1239 (Ala 1990).................................... 59 Yale Auto Parts, Inc. v. Johnson, 758 F2d 54 (2d Cir 1985)................................. 52 CONSTITUTIONS Article 1, Section 11, New York State Constitution ............................................. 66 Fourteenth Amendment, United States Constitution ............................................ 66 STATUTES Judiciary Law §88 (2)................................................................................. 42, 43, 44 Judiciary Law §90............................................................................................... 7, 33 Judiciary Law §90 (1)..............................................................................................22 x Judiciary Law §90 (1) (a).........................................................................................23 Judiciary Law §90 (2).....................................................17,19,21,22,27,32,36,42,44 Judiciary Law §478 ..................................................................20,22,32,33,73,75,76 Judiciary Law §479..................................................................................................22 Judiciary Law §484..................................................................................................22 Judiciary Law §485..................................................................................................33 Judiciary Law §486........................................................................................... 22, 33 RULES 22 NYCRR 603.13 (a) ........................................................................................... 22 22 NYCRR 691.10.................................................................................. 7, 22, 73, 75 22 NYCRR 691.10 (a)................................................................................ 17, 20, 22 22 NYCRR 691.11...................................................................................... 23, 62, 63 22 NYCRR 691.11 (a) (b) (c)................................................................................. 25 22 NYCRR 691.11 (c) (1)................................................................................. 23, 57 22 NYCRR 691.11 (d)............................................................................................ 23 22 NYCRR 806.9 (a) ............................................................................................. 22 22 NYCRR 1022.27 (a) ......................................................................................... 22 Rules of Professional Conduct (22 NYCRR 1200.0) rule 3.6................................71 xi LAWYER’S CODE OF PROFESSIONAL RESPONSIBILITY DR 1-102(a) (4) and (5) (22 NYCRR 1200.3 [a] [4],[5]).........................................7 DR 1-102 (a) (5) and (8) (22 NYCRR 1200.20 [1] [5],[7]) .....................................7 DR 1-102 (a) (8) (22 NYCRR 1200.3[a][7]).............]..............................................7 DR 5-101 (a) (22 NYCRR 1200.20[a]).....................................................................7 DR 7-102(a) (1) (22 NYCRR 1200.33 [a] [1]).........................................................7 MISCELLANEOUS Brandes, Law and the Family New York (2d ed rev 1997)............................. 20, 28 McKinney’s Cons Laws of NY, Book 1, Statutes §96............................................74 Nassau County Bar Assoc. Comm on Prof Ethics Op No. 92-15 (1992).............. 46 NY County Lawyers’ Assoc. Comm on Prof Ethics Op No. 666 (1985)........ 36, 45 New York State Bar Assn Comm on Prof and Jud Ethics Op No. 1998-1 (1999)............................................................................................. 45 David Rand, Jr., Annotation, Nature of Legal Services or Law-Related Services Which May be Performed for Others by Disbarred or Suspended Attorneys, 87 ALR 3d 279..........................................46 xii PRELIMINARY STATEMENT The appellant, Joel R. Brandes (“Brandes”), a disbarred attorney, appeals from a decision and order of the Appellate Division, Second Department, entered June 3, 2015, which denied his motion seeking reinstatement to the bar as an attorney and counselor-at-law. (Matter of Brandes, 2015 NY Slip Op 81096[U] [2d Dept 2015]; A. 3-4 [references to “A” followed by a page number refer to the appendix on appeal]). By order dated April 8, 2002, the Appellate Division, Second Department disbarred Brandes and struck his name from the roll of attorneys, based upon findings after a disciplinary hearing that Brandes was guilty of five charges of professional misconduct. (Matter of Brandes, 292 AD2d 129 [2d Dept 2002]; A. 5-10). Brandes’ motion for reargument or for leave to appeal to the Court of Appeals was denied by decision and order on motion dated October 16, 2002. Brandes’ first motion for reinstatement was denied by decision and order on motion dated November 5, 2009. (Matter of Brandes, 2009 NY Slip Op 87923[U] [2d Dept 2009]; A. 20-21). Brandes’ second motion for reinstatement, dated November 3, 2010 (A. 22), was held in abeyance and referred to the Committee on Character and Fitness to investigate and report on his current fitness to practice law, by order dated April 1 26, 2011. (Matter of Brandes, 2011 NY Slip Op 70970[U] [2d Dept 2011]; A. 29- 30). The Committee on Character and Fitness recommended against reinstatement. (A. 63). Brandes moved for reinstatement notwithstanding the recommendation of the Committee on Character and Fitness, which was denied by decision and order on motion dated December 17, 2012. (Matter of Brandes, 2012 NY Slip Op 93875[U] [2d Dept 2012]). Brandes’ third motion for reinstatement, dated November 18, 2013 (A. 66- 75) was held in abeyance and referred to the Committee on Character and Fitness to investigate and report on Brandes’ current fitness to practice law, “including, but not limited to, his future intentions with regard to the paralegal services portion of his internet business,” by order dated April 8, 2014. (Matter of Brandes, 2014 NY Slip Op 68827[U] [2d Dept 2014]; A. 78-79). The Committee on Character and Fitness, acting on the report of a subcommittee (A. 97-105), recommended reinstatement. (A. 97). The Appellate Division denied reinstatement in the decision and order appealed from. By order dated February 23, 2016, this Court granted Brandes’ motion for leave to appeal. (Matter of Brandes, 2016 NY Slip Op 64892 [U] [Ct App 2016]; A. 2). 2 STATEMENT OF FACTS The Disbarment of Brandes In the underlying disciplinary proceeding that resulted in Brandes’ disbarment, he was found guilty of five counts of professional misconduct. The charges were based on the following facts, as gleaned from the disbarment order. (Matter of Brandes, 292 AD2d 129 [2d Dept 2002]; A. 5-10). Brandes was involved in a divorce action with his former wife in Supreme Court, Kings County. After the trial concluded on January 16, 1992, and before the court rendered a decision, on August 13, 1992 Brandes and his wife settled the action with the execution of a 67 page stipulation of settlement, and judgment was entered August 26, 1992. The terms of the settlement included the sale of the marital home, from the proceeds of which Brandes and his wife were to each pay $25,000.00 to the wife’s matrimonial law firm for legal fees (which the law firm had substantially reduced from $112,000.00 to foster the settlement); $6,750.00 each to financial experts employed by Mrs. Brandes at the trial; and Brandes was to pay $35,000.00 to his own matrimonial counsel. (Id. at 130-132; A. 6-7). On February 18, 1993, Brandes and his wife directly negotiated and executed between themselves a separate agreement modifying the divorce settlement. This agreement deleted the combined payment of the $50,000.00 legal 3 fees to Mrs. Brandes’ matrimonial attorneys, and the combined $13,500.00 to the financial experts. But it left undisturbed the $35,000.00 in legal fees to Brandes’ attorney. (Id. at 131; A. 6-7). In August 1993, Mrs. Brandes’ matrimonial law firm sued her in Supreme Court, New York County to recover its legal fees in total, amounting to approximately $112,000.00. On November 8, 1993, Mrs. Brandes executed a retainer agreement, drafted by Brandes, hiring him to represent her in the action. The agreement provided in pertinent part: This will confirm your engagement of me and/or my law firm to represent you in the above captioned action which has been commenced against you in Supreme Court, New York County. It is understood by the two of us that because I am your former husband and the court may look unfavorably on my representation of you it may not be [sic] not be in your best interest for me or my firm to be your attorney of record. Therefore, I will obtain counsel of record for you and will be responsible directly to counsel, as your attorney, for the legal fees and disbursements of that person or law firm. You will pay us for the legal fees of outside counsel at the rate set forth below. If, at any time I deem it appropriate to do so, I or my law firm will become your attorney of record and you will sign whatever documents as are necessary to effectuate such a change . . . I will supervise all work on this matter.” (Id. at 131-132; A. 7). Brandes retained an “outside” attorney to appear as counsel of record for the fee action, who made all court appearances, but Brandes worked jointly with the 4 outside counsel on all court papers and strategy. It was also agreed that Brandes’ role as attorney would be concealed from the court and opposing counsel. (Id. at 132; A. 7). On March 17, 1994 the court issued a decision from the bench dismissing Mrs. Brandes’ affirmative defense of lack of personal jurisdiction. The “outside” counsel filed a notice of appeal on March 29, 1994. On April 17, 1994, Mrs. Brandes executed another retainer agreement, containing language identical to the first, for Brandes to represent her in the appeal. Brandes, in turn, hired the same “outside’ attorney to appear as counsel of record to prosecute the appeal, with Brandes continuing to conceal his role. The Appellate Division, First Department ultimately affirmed the order. (Id. at 132-133; A. 7-8). By order dated February 21, 1995, the court granted summary judgment to Mrs. Brandes’ matrimonial law firm, awarding it legal fees of $112,022.01. Judgment was entered March 15, 1995. On March 18, 1995, Mrs. Brandes executed a third retainer agreement, again identical in language to the other two, retaining Brandes to represent her in the appeal of this judgment. Brandes again hired the same “outside” counsel to appear as counsel of record in the appeal; supervised all the work in the matter; and continued to conceal his role. (Id. at 134; A. 8). The Appellate Division, First Department ultimately affirmed the 5 judgment. (Id. at 135; A. 8-9). Meanwhile, on December 15, 1994, Brandes filed a disciplinary complaint against Mrs. Brandes’ matrimonial law firm, alleging professional misconduct in its representation in the matrimonial matter. The Grievance Committee for the Second and Eleventh Judicial Districts dismissed the complaint on December 15, 1995. (Id.; A. 9). On January 24, 1995, Brandes commenced an action against the matrimonial law firm for damages resulting from its conduct in the divorce action, which was also dismissed. (Id. at 134-135; A. 8). On June 16, 1995, in order to thwart enforcement of the judgment, Brandes and Mrs. Brandes entered into a written agreement under which he accepted a conveyance of Mrs. Brandes’ assets as payment of legal fees owed to him. (Id.). In hearing testimony given December 2, 2011in connection with Brandes’ later second reinstatement motion, he blamed his misconduct on his anger at his wife’s matrimonial law firm, stemming from his perception that the law firm unreasonably refused to settle the action before trial. “And so I got involved behind the scenes, and I didn’t let the Court know, I didn’t let the other attorneys know I was involved. . . Basically representing her . . I basically was, you know, handling the representation, drafting the documents.” (A. 35-36). He explained that he remained behind the scenes because “if they knew I was involved, they 6 would say there would be no merit to her case.” (A. 35-37). On these facts, the Appellate Division, Second Department determined that Brandes engaged in a conflict of interest in connection with the representation of his former wife under former Disciplinary Rule 5-101 (a) (22 NYCRR 1200.20[a]); engaged in a course of frivolous conduct intended to harass or maliciously injure the former wife’s law firm under former Disciplinary Rule 1- 102 (a) (5) and (8) (later [7]) (22 NYCRR 1200.20 [a] [5], [7]) and former Disciplinary Rule 7-102 (a) (1) (22 NYCRR 1200.33 [a] [1]); engaged in conduct involving dishonesty, deceit, and misrepresentation and conduct prejudicial to the administration of justice under former Disciplinary Rules 1-102(a) (4) and (5) (22 NYCRR 1200.3 [a] [4], [5]), by deliberately concealing from the court his representation of his former wife; and engaged in conduct adversely reflecting on his fitness to practice law under former Disciplinary Rule 1-102 (a) (8) (later [7]) (22 NYCRR 1200.3 [a] [7]). Brandes was disbarred. (Id. at 135-137; A. 9-10). In its order disbarring Brandes, the Appellate Division stated that Brandes “shall comply with this Court’s rules governing the conduct of disbarred, suspended, and resigned attorneys (see 22 NYCRR 691.10); and, in addition: Ordered that pursuant to Judiciary Law § 90, effective immediately, Joel R. Brandes is commanded to desist and refrain from (1) practicing law in any form, either as principal or as agent, clerk, or 7 employee, (2) appearing as an attorney or counselor-at-law before any court, judge, justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law. (Id. at 137; A. 10). Brandes’ November 8, 2010 Reinstatement Application In November 2010 Brandes moved for reinstatement. (A. 22-28). In this application, Brandes stated under item 33: The following facts, not heretofore disclosed to this court, are relevant to this application, and might tend to influence the court to look less favorably upon reinstating me to the practice of law: Since my disbarment I have earned a living using the only true skills I have left; my academic teaching and writing skills. I have, as indicated above, done so for Thompson-West, and through my websites and e-journal. Through Joel R. Brandes Consulting Services Inc. I have served attorneys throughout the country in two ways. We teach attorneys about all aspects of divorce and family law. Further, we offer virtual paralegal services via the internet. We assist lawyers with legal research and drafting, valuation reports and custody evaluations. I only work for attorneys, and only via the phone, mail, or internet. I made certain that I did not have any contact with clients or non- lawyer personnel. I reveal this information in the spirit of full disclosure, however, I do not believe my actions are violative of this Court’s Order of disbarment as, prior to undertaking any of the above tasks, I thoroughly researched the law of the states of Florida and New York, 8 and I verily believe that my undertakings have been lawful and ethical. (A. 27). His website, in operation since 1995, was named New York Divorce and Family Law (nysdivorce.com). (A. 26). By decision and order dated April 26, 2011, the Appellate Division ordered “that the motion is held in abeyance and the matter is referred to the Committee on Character and Fitness to investigate and report on Joel R. Brandes’ current fitness to be an attorney.” (A. 29-30). The Committee on Character and Fitness appointed a subcommittee, which conducted a hearing on December 2, 2011. (A. 31-61). At the hearing, Brandes described his long time work writing and updating a multi-volume legal treatise, “Law and the Family New York.” He had continued this work after his disbarment, which he considered his “primary livelihood and my passion,” writing updates and receiving royalties. However, he explained that “I don’t do the forms anymore; they [referring to the publisher] terminated that when I lost my license.” (A. 31-33). The subcommittee questioned Brandes about his continued use of a website, “Brandes Law Dot Com.” Brandes explained that he selected that as his internet domain name while still an admitted attorney. After his disbarment, Brandes stated, he could not change the name, and that it still 9 served him well in his disbarment: I had a very good GOOGLE ads placement. If you search New York Divorce and Family Law on GOOGLE, I’ll come up there pretty much right away. And that’s a very valuable thing. I believe it is today; I don’t pay for it. I wrote – did all this myself, so I couldn’t get rid of the domain, without shutting down the website, and losing everything. So I switched it to NYS Divorce Dot Com. And the name of it, the trademark name, is “New York Divorce and Family Law.” But I’m stuck forever as we, I think we all know. Anything on the Internet stays there for life; you can’t get rid of it. But I can’t get rid of Brandes Law Dot Com. There is no way to do it, unless I want to start all over again, and lose whatever good will the name has, but it’s clearly, it’s an advertising. It’s the way I get my business. Actually lawyers will call me after they see that, and ask me to do paralegal work for them. It doesn’t give legal advice. All articles, mostly things I’ve written, my children have written with me. (A. 51-53). He testified that the website is “basically selling what I do, which is paralegal work.” (A. 51). Regarding his paralegal work, Brandes stated that “normally a lawyer will call me when they want me to do paralegal work. I don’t, or I’ll say buy the book if you don’t want me to do paralegal services, I suggest you see “Law and the Family New York.” (A. 53-54). Asked by a member of the subcommittee “You would do paralegal work for the attorney,” Brandes answered “Yeah.” “A lawyer will call me up, and say, I need you to research on a legal issue.” “And, basically, they will say what they need done. And I’ll send them an engagement agreement.” (A. 54-55). He described his paralegal work as: 10 Drafting a motion. Doing a research project, and giving them a memorandum of law. Drafting a complaint. Drafting a brief. Some kind of legal research, and drafting a motion. What they will do is send me documents that they want me to look at, in conjunction with what they want me to do. Whatever they send me, I look at, and then I draft it for them. Then I e-mail it back to them. And normally I don’t hear from them again. (A. 55). Brandes indicated that for drafting motions, the lawyer would at times provide the facts of the case. (A. 56). Brandes testified that based on his research, “[a] paralegal is someone who drafts work, does legal work, drafting work, with a lawyer, and drafts documents, basically, for them.” (A.57). He indicated that the lawyer, not he, exercised professional judgment; that he had contact only with the lawyer; and that he never saw final drafts of his papers. (A. 57-60). By letter dated May 4, 2012, the full Committee on Character and Fitness advised Brandes that it recommended against his reinstatement. It reasoned that a majority of the full committee “was concerned about petitioner’s offer of ‘virtual paralegal services via the internet’ on his website, and his failure to specifically state he was not an attorney and given his past disciplinary history of concealing from opposing counsel his representation of his former wife.” (A. 63). By decision dated December 17, 2012, the Appellate Division denied Brandes’ second reinstatement, finding that he “does not demonstrate the requisite 11 fitness and character to practice law.” (A. 64-65). Brandes’ November 18, 2013 Reinstatement Application Brandes submitted his third motion for reinstatement November 2013. (A. 66-77). In his application, Brandes related that he learned that the full Committee on Character and Fitness had rejected his previous application due to concern over his paralegal services business through the website for his Joel R. Brandes Consulting Services; his failure to specifically state that he was not an attorney; and his past disciplinary history of concealing from opposing counsel his representation of his former wife. Heeding these concerns, Brandes changed the opening page of his website in January and February 2013 to indicate that he and his wife, co-owner of the consulting service, were not lawyers. (A. 72). By July 2013 he had omitted references to paralegal services. (A.73). Attached to the application was a copy of the opening page of Brandes’ website, “nysdivorce.com,” dated January 16, 2013. (A. 76). At the top of the page, the site was described as “the definitive site on the web for New York Divorce and Family Law.” It further stated: Domestic litigation is a part of American life. Almost everyone has been directly or indirectly involved in divorce, custody, or domestic violence proceedings. This site has been designed to make the lawyer more knowledgeable about New York Divorce and Family Law. 12 The site indicated that “New York Divorce and Family Law is owned and published by Joel R. Brandes Consulting Services, Inc. The ultimate source for litigation support and paralegal services for matrimonial and family law attorneys throughout the World.” Also, the site stated that “Joel R. Brandes Consulting Services, Inc. is a ‘virtual’ or internet based paralegal service, providing paralegal services to matrimonial and family law attorneys.” (A. 76). A copy of the website opening page, dated July 14, 2013, was attached to the application. In this iteration, there was no reference to providing paralegal services, and instead indicated that the Joel R. Brandes Consulting Services, Inc. “[a]re a legal research and writing service for attorneys, and only work for attorneys.” (A.77). By order dated April 8, 2014, the Appellate Division directed the third motion for reinstatement held in abeyance, and referred the matter to the Committee on Character and Fitness to investigate and report on Brandes’ current fitness to practice law, “including, but not limited to, his future intentions with regard to the paralegal services portion of his internet business.” (A.78-79). The Character and Fitness Committee appointed a subcommittee, which conducted a hearing on June 9, 2014. (A. 80-96). Brandes testified that he lived in Florida, which used the ABA definition of 13 paralegal, and under which Florida allowed disbarred lawyers to work as paralegals, either for lawyers or independently. (A. 80). However, he also stated that “I have never actually worked as a paralegal, in that sense, whatever that means. All I have actually done for lawyers is, I’ll do legal research, and then I’ll draft something for them.” (A. 80). He described that he did the work in Florida via e-mail, and not in New York; never worked in a law office or was an employee of a lawyer; and never had contact with a client. (A. 80-81). But he did have telephone contact with New York lawyers. (A. 81). He also testified “That’s where [his] reputation is. That’s my expertise, is New York law. I don’t really know much about any other law, that well; and international child abduction law, which is federal.” (A. 82). Brandes testified that “I’ve had lawyers who came in and ask me to draft a memo of law, to draft a brief, that sort of thing.” (A. 82-83). He also provided the subcommittee with an “actual situation” of the work he performed. That involved a pending divorce trial in which the lawyer asked Brandes to research whether her client, who was in another country, was required to appear in court. He did the research and provided a memorandum to the lawyer. (A. 82). In another specific matter, a New York lawyer e-mailed Brandes; informed him she was representing “so and so” client in a domestic relations action in which she had obtained a 14 default judgment; related the procedural history of the case; and requested research into specific issues pertaining to a motion the attorney for the wife had made for temporary support, but had not moved to vacate the default. Brandes testified that he researched the legal issue of whether a party can make a motion for temporary support when in default. (A. 83-84). Once he performs the research on the legal issues, Brandes stated, he sends the requesting lawyer a memo. (A. 84-85). He explained that he generally billed his services out at $135 to $150 an hour, and received payment by check or by deposit into the business checking account. (A. 85). He further stated that for the last two years “I haven’t had many lawyers to do work for. So it’s not really an issue.” (A. 85-86). During colloquy with Brandes’ counsel discussing bar association opinions and court cases regarding the practice of law (A. 86-91), the subcommittee chair stated: And I think in the opinion, but, and I think both Ms. Stone and I, from our long history on this committee, had heard the rule that a disbarred attorney should not be working as a paralegal in a law office, regardless of whether they’re dealing with, directly, with clients or not, there’s too much of a, they can be doing too many lawyerly-type things. And there’s, the temptation is too great. (A. 93). The chair noted that the subcommittee had considered the brief Brandes submitted on the question of disbarred lawyers acting as paralegals, had conducted 15 it own research, “and came up with these three opinions” [referring to ethics opinions], and concluded that as a disbarred lawyer Brandes should not be working as a paralegal in a law office. (A. 93). Brandes’ counsel asserted that the ethics opinions referred to by the subcommittee chair do not have the force of law, and that “it is a very lax area of the practice.” But he also stated “[a]nd I would agree with you, from a practical effect, that disbarred lawyers shouldn’t be in a law office. But that’s probably as far as I would be willing to go.” (A. 95). The sub-committee chair then stated: Then the question is, here you are an expert in this field, whether you are admitted or not. That’s a recognized fact. And you are not the typical law student or recent law graduate, who might be giving research to a senior lawyer who will look it over and pass judgment on it. People are coming to you because you have more expertise than they do, when it comes to the law.” (A. 95-96). Brandes replied, “That’s true.” (A. 96). The chair stated, “I’m not sure what difference that makes, but I throw that out as a factor.” (A. 96). The subcommittee issued its report on September 9, 2014. (A. 97-105), and included a copy of the earlier March 7, 2012 subcommittee report from the second reinstatement motion. (A. 97). In its September 9, 2014 report the subcommittee noted that it found no ethical problems arising from Brandes’ earning income from the updates to his 16 treatise. However, regarding the paralegal business, the subcommittee “took a hard look at his providing, from Florida, research and drafting services to New York attorneys who were in need of seasoned advice when representing clients in the matrimonial and domestic relations field.” (A. 100). The report noted that in his briefs submitted in connection with the hearing Brandes “took the position that in drafting memoranda of law and other court documents . . . [he] was not practicing law but was basically acting as an off-site paralegal for the New York attorneys for whom he was providing services.” (A. 100). While the members did not disagree with this, they stated that it did not “fully resolve the issue as to the propriety of that aspect of Petitioner’s post- disbarment employment.” The subcommittee declined to follow Florida law, which permitted disbarred attorneys to be employed as paralegals, and applied New York law instead. The subcommittee noted that under 22 NYCRR 691.10 (a), disbarred lawyers are directed to comply with the letter and the spirit of various sections of the Judiciary Law. Under section 90 (2) of the Judiciary Law, disbarment orders must direct that the attorney “desist and refrain from the practice of law in any form, either as principal or as agent, clerk or employee of another.” It also forbids “the giving to another of an opinion as to the law or its application, or of any 17 advice in relation thereto.” The April 8, 2002 disbarment order incorporated these prohibitions. (A. 100-101). The subcommittee referenced a number of ethics opinions discussing the propriety of an attorney employing a disbarred attorney as a paralegal. It concluded that these opinions “implicitly place greater restrictions upon the ability of a disbarred lawyer from earning a living by use of his or her training and talent and experience than are encountered by non-lawyers generally.” (A. 101). The subcommittee also referenced the decision in Matter of Katz (35 AD2d 159 [1st Dept 1970]), which denied the reinstatement application of a disbarred attorney who had worked for a City Marshal, who “is closely allied with the courts and judicial proceedings” and “whose duties include the enforcement of court orders.” Employing the disbarred attorney, the court stated, “generates disrespect for the courts.” The subcommittee also cited Matter of Rosenbluth (36 AD2d 383 [1st Dept 1971]), which modified a suspension order to permit the attorney to operate a calendar watching service. (A. 101). The subcommittee reported that the members “were concerned whether Petitioner’s embarking on a short-lived career in drafting briefs and litigation papers for, especially New York attorneys, was consistent with the limitations placed on disbarred attorneys by the Judiciary Law.” (A. 102). 18 The report stated: In a typical para-legal relationship, the research and drafting that the paralegal may engage in will always be subject to the review of an experienced attorney. This Petitioner, on the other had, is, by his own admission, vastly more experienced in matrimonial and domestic relations matters than the attorneys for whom he was performing services. As such, he cold be deemed to be performing legal services for a client, viz. the attorney for whom he drafted the brief and the documents. Also, like the employee of the City Marshal in the Katz case, the performance of those drafting services in litigated matters can be considered “work . . . closely allied with courts and judicial proceedings” and thus his employment would be considered as “generat[ing] disrespect for the courts.” Finally, whether or not the New York lawyer is considered Petitioner’s client, Petitioner’s work product could be considered as “the giving to another of an opinion as to the law or its application, or of any advice in relation thereto,” in violation of Judiciary Law 90 (2). (A. 102). Notwithstanding these findings, the subcommittee recommended reinstatement. It concluded that Brandes “acted under the good faith belief that he was not in violation of any of the Rules applicable to disbarred attorneys,” and “went out of his way” to advise that he was not an attorney; and began performing the services for attorneys at the suggestion of a federal judge.” (A. 102-103). By letter dated November 10, 2014, a majority of the full Committee on Character and Fitness recommended reinstatement. The Appellate Division, Second Department, denied reinstatement by decision and order dated June 3, 2015, (A. 3-4), stating its reasons as: 19 We find that Mr. Brandes engaged in the unauthorized practice of law during the period of his disbarment when he provided paralegal services via the Internet. Mr. Brandes represents that he has since ceased this portion of his internet business because it proved unprofitable. Mr. Brandes’ provision of such services through his corporation, Joel R. Brandes Consulting Services, Inc., during the period he did operate this portion of his business, violated Judiciary Law § 90(2) and this Court’s order of disbarment, which, inter alia, directed that Mr. Brandes “desist and refrain from . . . practicing law in any form, [and] giving to another an opinion as to the law or its application or any advice in relation thereto.” “The practice of law involves the rendering of legal advice and opinions directed to particular clients.” (Matter of Rowe, 80 NY2d 336, 341-342). Under the guise of being a paralegal, Mr. Brandes, a noted authority and expert on New York family law and divorce (see Brandes, Law and the Family New York [2d ed rev 1997] and cumulative supplements), for instance, would give advice to an attorney, who had a difficult case. Mr. Brandes would speak to the attorney over the telephone or by e-mail regarding a particular aspect of the difficult case. Upon presentation of the particulars of the case or problem, Mr. Brandes would guide the attorney to the applicable statutes and precedent cases, and offer his past experience. Such rendering of legal advice or opinion constitutes the practice of law, since Mr. Brandes in so doing, exercised professional judgment directed at the legal problem of a particular client, notwithstanding the fact that Mr. Brandes had no direct contact or relationship with the client. In many other instances, Mr. Brandes contracted to draft briefs and other litigation papers for other attorneys. Given the fact that Mr. Brandes was vastly more experienced in matrimonial and domestic relations matters than the attorneys for whom he was performing services, the provision of such services can be deemed to be performing legal services for a client, namely, the attorney for whom he drafted the brief and documents. Such giving of advice and performance of legal services certainly violated the spirit, if not the letter, of Judiciary Law § 478 (see 22 NYCRR 691.10 [a]). 20 POINT ONE BRANDES VIOLATED THE CONDITIONS OF THE ORDER DISBARRING HIM BY ENGAGING IN THE PRACTICE OF LAW UNDER THE GUISE OF PROVIDING PARALEGAL SERVICES AND FAILED TO ESTABLISH BY CLEAR AND CONVINCING PROOF THAT HE POSSESSES THE CHARACTER AND FITNESS FOR REINSTATEMENT TO THE BAR. Brandes lacks the character and fitness to be a lawyer in New York. So the Appellate Division has repeatedly found. It did so in 2002, when it disbarred him for serial acts of ethical misconduct in which he engaged in deceptive activities by acting as the “behind the scenes” attorney for his divorced wife, and concealed this from the courts. The Appellate Division so found again in 2012 and 2015 when it denied his reinstatement motions for similar deceptive conduct, this time for practicing law under the guise of a paralegal, in violation of his disbarment order. Brandes’ want of character and fitness is the singular and controlling issue in this appeal. His insubstantial constitutional claims, fired blunderbuss fashion in multiple directions, fall wide of this mark. A. Law Relating to the Reinstatement of Disbarred Attorneys. The order disbarring Brandes contained directives prescribed by statute and court rule. Judiciary Law § 90 (2) requires that an order of disbarment contain a provision “which shall command the attorney and counsellor-at-law to desist and 21 refrain from the practice of law in any form, either as principal or agent, clerk or employee of another.” Additionally, the order must “forbid . . the appearance as an attorney . . . before any court, judge, justice, board, commission, or other public authority” and “the giving to another of an opinion as to the law or its application, or of any advice in relation thereto.” Also, all four Departments of the Appellate Division explicitly require disbarred attorneys to comply with Judiciary Law §§ 478, 479, 486, and 484. (See 22 NYCRR 603.13 [a] [First Department], 691.10 [a] [Second Department], 806.9 [a] [Third Department], 1022.27 [a] [Fourth Department]). Judiciary Law § 478 as pertinent in this appeal provides: It shall be unlawful for any natural person to practice or appear as an attorney-at-law or as an attorney and counselor-at-law for a person other than himself or herself in a court of record in this state, or to furnish attorneys or counsel or an attorney and counsel to render legal services, or to hold himself or herself out to the public as being entitled to practice of law as aforesaid, or in any other manner . . . without having first been duly and regularly licensed and admitted to practice law in the courts of record of this state, and without having taken the constitutional oath. The Appellate Divisions have “the power and control over attorneys and counselors-at-law.” (Judiciary Law § 90 [2]). This power includes the admission of applicants to the bar, and the suspension or disbarment of admitted attorneys. (Judiciary Law § 90[1], [2]). As regards admissions, applicants may be admitted 22 only if the Appellate Divisions are “satisfied that the person possesses the character and fitness required for an attorney.” (Judiciary Law § 90 [1] [a]). Under the rule making authority of the Appellate Divisions, provided for under Judiciary Law § 90 (1) (a), the reinstatement of disbarred or suspended attorneys is vested in the discretion of those courts. The four departments have each promulgated rules governing the procedures and requirements for reinstatement, which in the case of the Second Department is its rule 691.11 (22 NYCRR 691.11). Among the several requirements is that reinstatement “may be granted only upon a showing by clear and convincing evidence, that the applicant has complied with the provisions of the order disbarring or suspending him or her . . . and that he or she possesses the character and general fitness to practice law.” (22 NYCRR 691.11 [c] [1]). In addition, the court “shall refer an application for reinstatement after . . . a disbarment to a Committee on character and Fitness in this judicial department . . . for a report before granting that application.” (22 NYCRR 691.11 [d]). New York’s imperative that an applicant for admission or reinstatement possess suitable character and fitness is constitutionally permissible, and universally applied. (Law Students Civil Rights Research Council, Inc. v. Wadmond, 401 US 154, 159 [1971]). Character and fitness, sometimes also 23 referred to as good moral character, can be defined “in an almost unlimited number of ways . . . .” (Konigsberg v. State Bar of California, 353 US 252, 262- 63 [1957]). However, “[l]ong usage in New York and elsewhere has given well- defined contours to this requirement . . . .” (Law Students Civil Rights Research Council, 401 US at 159). This Court has defined lack of fitness as “conduct reasonably viewed as incompatible with a lawyer’s duties and responsibilities as a member of the Bar.” (Matter of Anonymous, 74 NY2d 938, 940 [1989]). The Appellate Division’s discretion in the reinstatement of disbarred attorneys is considerable. In exercising that discretion it must engage in a deliberate and considered balancing of the interests of the attorney to enjoy the privilege of practicing law and the protection of the public from attorneys lacking the character and fitness to practice law. Often, the protection of the public must be accorded the greater weight. “In our view, this concern for the protection of the public interest far outweighs any interest the convicted attorney has in continuing to earn a livelihood from his chosen profession.” (Mitchell v. Association of the Bar, 40 NY2d 153, 156 [1976] [denying reinstatement of attorney convicted of a felony]). “The practice of law is a privilege, and while an attorney subject to discipline is entitled to due process, the protection of the public from the unscrupulous practitioner may interdict relief from certain unfairness that may 24 arise in the course of the imposition of discipline.” (Matter of Dondi, 63 NY2d 331, 339 [1984]). In line with these principles, and because there is no unqualified right to be admitted as an attorney, the reinstatement of disbarred attorneys to practice is not a formulaic or a mechanical exercise. It is not determined by the rote application of statutes and court rules. Certainly, certain aspects of attorney reinstatement involve generalized qualifications, such as the timing of applications, the use of a prescribed form and notice of application, and attaining a passing score on the Multistate Professional Responsibility Examination. (22 NYCRR 691.11 [a], [b], [c]). But other aspects go to “individualized concerns of personal character and fitness” requiring “person-by-person investigation and determination at the local, departmental level.” (Matter of Anonymous, 78 NY2d 227, 232 [1991]). “Notably, each application must be considered on its own merits.” (Matter of Anonymous, 116 AD3d 62, 65-66 [1st Dept 2014]). “One is not licensed to practice law merely because he is a resident and possesses certain legal knowledge. He may be required to demonstrate that he is a person of good moral character. Investigations by ‘character committees’ and other licensing agencies are not intended to be perfunctory.” (Tang v. Appellate Division of New York Supreme Court, First Department, 373 F Supp 800, 802 [SD NY 1972], affd 487 25 F2d 138 [2d Cir 1973], cert denied 416 US 906 [1974]). “Membership in the bar is a privilege burdened with conditions. A fair and professional character is one of them. Compliance with that condition is essential at the moment of admission; but is equally essential afterwards. Whenever the condition is broken, the privilege is lost.” (Matter of Rouss, 221 NY 81, 84 [1917], cert denied 246 US 661 [1918]). In evaluating Brandes’ character and fitness for reinstatement, the Appellate Division acted in a judicial, and not an administrative or ministerial capacity. The admission or exclusion of attorneys “is not the exercise of a mere ministerial power. It is the exercise of judicial power, and has been so held by numerous cases.” (Ex Parte Garland, 71 US 333, 378-379 [1867]). “Control of membership in the Bar rests in the court and not in any administrative agency. To be a member of the Bar connotes more than an employment license, permit, or other authority or privilege. Members of the Bar are officers of the court.” (Matter of Sugarman, 51 AD2d 170, 171 [1st Dept], appeal denied 39 NY2d 707 [1976]. Accord Mildner v. Gullota, 405 F Supp 182, 191 [ED NY 1975], judgment affirmed 423 US 901 [1976]). The determination of Brandes’ character and fitness is an exercise of the Appellate Division’s judicial discretion. As such, this Court applies an abuse of discretion standard of review: 26 The Appellate Division is the finder on issues of character and fitness and its discretion is inclusive; our review “is limited to ensuring that the proceedings have been conducted in accordance with statutory and regulatory requirements, that no right of the petitioner has been violated, and that there is evidence to sustain the decision of the Appellate Division . . . [w]e may not substitute our judgment on the merits for that of the Appellate Division.” (Matter of Anonymous, 79 NY2d 782, 783 [1991], quoting Matter of Anonymous, 74 NY2d 938, 940 [1989]). The record of this proceeding shows that the determination of the Appellate Division to deny reinstatement to Brandes complied with applicable statutes and rules, did not violate any of Brandes’ rights, and contains sufficient evidence. B. The Record Supports The Appellate Division’s Determination. The evidence in the record, consisting of Brandes own documentary evidence and testimony, shows that his law-related activities were not incidental and innocuous. The findings recited in the Appellate Division’s decision closely reflect the factual and legal conclusions contained in the report of the subcommittee, and which have ample support in the record. The subcommittee concluded that Brandes violated his disbarment order and Judiciary Law § 90 (2) by engaging in the practice of law through his internet paralegal services. It found that Brandes did not act in a typical paralegal-attorney relationship. Rather, based on his own admission, Brandes was “vastly more 27 experienced in matrimonial and domestic relations matters than the attorneys for whom he was performing services. As such, he could be deemed to be performing legal services for a client, viz. the attorney for whom he drafted the brief and the documents.” (A.102). The Appellate Division concurred with this conclusion and adopted it in its decision, where it stated that “Given the fact that Mr. Brandes was vastly more experienced in matrimonial and domestic relations matters than the attorneys for whom he was performing services, the provision of such services can be deemed to be performing legal services for a client, namely the attorney for whom he drafted the brief and documents.” (A. 4). The court observed in this regard that Brandes is “a noted authority and expert on New York family law and divorce,” citing his treatise, Brandes, Law and the Family New York [2d ed rev 1997 and cumulative supplements]. (A. 4). So, too, the subcommittee found that whether or not the New York lawyer for whom Brandes provided services is considered a client, Brandes’ work product could be considered as “the giving to another of an opinion as to the law or its applications, or of any advice in relation thereto.” The Appellate Division adopted this conclusion as well, as reflected in its decision stating that in advising an attorney with a difficult case about applicable law, “Such rendering of legal advice or opinion constitutes the practice of law, since Mr. Brandes in doing so, exercised 28 professional judgment directed at the legal problem of a particular client, notwithstanding the fact that Mr. Brandes had no direct contact or relationship with the client.” (A. 4). Consistent with its inherent discretion, the Appellate Division adopted these factual findings of the subcommittee, but not its conclusion that mitigating factors excused Brandes’ violation of the disbarment order. The factual findings of the Appellate Division have solid foundation in the record. The record facts, summarized in the statement of facts above, include specifics of Brandes’ activities in providing paralegal services to New York attorneys, and two particular examples of actual litigation matters in which New York attorneys sought Brandes’ expertise. Further, Brandes acknowledged that he was not a typical paralegal giving research to a senior lawyer; rather the lawyers came to him because of his superior expertise in New York matrimonial law. And Brandes accentuated his expertise in his internet website, using it as a compelling inducement for lawyers to employ his paralegal services rather than those of a non-attorney paralegal offering only generic services. The record contains additional pertinent facts. It contains the circumstances of Brandes’ disbarment. These include that Brandes habitually operated “behind the scenes” as his former wife’s secret attorney in her prolonged litigation to 29 unilaterally nullify the obligation to pay the legal fees of the wife’s attorneys. After his disbarment, Brandes repeated the same misconduct, this time secretly practicing law “behind the scenes” under the guise of a paralegal through a website that did not adequately or specifically state that he was not an attorney. The parallels in Brandes’ pre and post-disbarment conduct concerned the full Committee on Character on Fitness in the second reinstatement proceeding, as reflected in its letter recommending against reinstatement, where it noted Brandes’ “past disciplinary history of concealing from opposing counsel his representation of his former wife.” (A. 63). The record also demonstrates Brandes cynical and calculated strategy regarding his paralegal business. He first provided a detailed description of the nature and scope of his paralegal business in his November 2010 reinstatement application. There, Brandes acknowledged operating as a paralegal, and advised the Appellate Division of facts “not heretofore disclosed to this court” that “might tend to influence the court to look less favorably upon reinstating” him, and added a fuller description of the paralegal business than he had previously. (A. 27). Brandes also gave testimony about the specifics of his paralegal activities in the subcommittee hearing. (A. 54-60). However, knowing that his second reinstatement application was denied, in 30 part, due to his paralegal business, in his third application Brandes revamped history. Now he advised that he had changed the opening page of his website to prominently indicate that he was not a lawyer; and removed all references to paralegal services. (A. 73). But this change was more cosmetic than substantive. A screen shot of the nysdivorce.com website for January 16, 2013 still touted Brandes’ website as the definitive site for New York divorce and family law, and as the ultimate source for paralegal services in that area. (A. 76). The opening page dated July 14, 2013 again contained the identical laudatory language about Brandes’ expertise, but superficially redefined his paralegal services as a “legal research and writing service for attorneys.” (A.77). The determination that Brandes did not meet his burden of proving his character and fitness to practice law is based primarily upon his own words and documents. As such, the facts are not in dispute. The weight to be assigned to the various facts; the inferences to be drawn from them; and the conclusions to be reached from them are matters of discretion vested with the Appellate Division. This processing of the raw facts is the quintessential judgment call, which the Appellate Division is duty bound to make. Based on its individualized assessment of the facts, the Appellate Division acted well within the scope of its discretion in 31 concluding that Brandes failed to establish his fitness for practice, and that his proof actually evinced a lack of fitness, based on his practicing law under the guise of a paralegal. That Brandes has a different view of his proof is not reason to reverse this determination. And, as previously noted, the record includes the similarity in Brandes’ misconduct resulting in his disbarment and his post- disbarment misconduct. This factor, alone, would support the denial of reinstatement, in that the court reasonably could find that “[i]t is manifest here, considering the reasons for which petitioner was disbarred that there is not even a prima facie showing of fitness and character to practice law.” (Matter of Licato, 104 AD2d 20, 22 [1st Dept 1984]). Moreover, the Appellate Division’s determination is congruent with jurisprudence regarding the practice of law, and the law-related activities permitted to disbarred lawyers. C. The Practice of Law – General Principles Taken in tandem, sections 90 (2) and 478 of the Judiciary Law prohibit the practice of law by any persons not properly licensed to do so. The purpose of section 478 is to protect the public in this state from “the dangers of legal representation and advice given by persons not trained, examined and licensed for such work, whether they be laymen or lawyers from other jurisdictions.” (Spivak 32 v. Sachs, 16 NY2d 163, 168 [1965]). For this reason, New York permits only duly admitted attorneys to practice law, (Judiciary Law §§ 478, 485), and this limitation applies to disbarred attorneys. (Id. §§ 90, 486). Section 478 not unconstitutionally void for vagueness, as it clearly delineates the conduct it prohibits. It bars an unlicensed person from appearing in court, rendering legal services, or holding himself or herself out as being entitled to practice law, or in any other manner. (People v. Jakubowitz, 184 Misc 2d 559, 561 [Sup Ct Bronx County 2000] [construing the predecessor section 270]). New York courts have not devised an all-inclusive definition for the “practice of law.” Recognizing that what constitutes the practice of law is more readily described than defined, the courts have left the determination to a case-by- case examination. In so doing, judicial decisions in New York have steadily and incrementally expanded the definition of the “practice of law” to encompass a wide range of circumstances. The practice of law is much broader than simply appearing in court in a legal proceeding. In People v. Alfani (227 NY 334 [1919]) this Court found that “according to the generally understood definition of the practice of law in this country, it embraces the preparation of pleadings and other papers incident to actions and special proceedings and the management of such actions and proceedings on behalf of clients before judges and courts, and in 33 addition conveyancing, the preparation of legal instruments of all kinds, and in general all advice to clients and all action taken for them in matters connected with the law.” (Id. at 337-38, quoting Matter of Duncan, 83 SC 186, 65 SE 210 [1909]). Therefore, the practice of law includes rendering legal advice and the preparation of legal papers outside the precincts of a courtroom. (Spivac, 16 NY at 166). “Whether a person gives advice as to New York law, Federal law, the law of a sister State, or the law of a foreign country, he is giving legal advice. Likewise, when legal documents are prepared for a layman by a person in the business of preparing such documents, that person is practicing law . . ..” (In re Roel, 3 NY2d 224, 229 [1957]). “The practice of law involves the rendering of legal advice and opinions directed to particular clients.” (Matter of Rowe, 80 NY2d 336, 341-42 [1992], cert denied 508 US 928 [1993], citing El Gemayel v. Seaman, 72 NY2d 701, 706 [1988], and New York County Lawyers’ Association v. Dacey, 28 AD2d 161, 173-174 [1st Dept] [Stevens, JP, dissenting], revd on dissenting opn below 21 NY2d 694 [1967]. “Fundamentally, legal advice involves the interpretation and application of legal principles to guide future conduct or to assess past conduct . . . It requires a lawyer to rely on legal education and experience to inform judgment.” (In re County of Erie, 473 F3d 413, 419-420 [2d Cir 2007]). Services rendered to a single client can constitute the practice of law. 34 (Spivak, 16 NY2d at 163). “The broad sweep of New York decisions culminating in Spivak makes it clear that virtually no legal services may be rendered in New York by a person not admitted to the state bar except for “customary and innocuous practices” in transactions only “somehow” tied to New York.” (Spanos v. Skouras Theatres Corp., 364 F2d 161, 165 [2d Cir], cert denied 385 US 987 [1966], citing Spivak, 16 NY2d at 168]). D. Brandes Provided Legal Services to Clients Brandes argues that the Appellate Division erred in its determination that the attorneys for whom he drafted briefs and other litigation papers were his clients, based on the disparity in expertise between him and the attorneys. Relying on selected passages from the opinions in Rowe, El Gemayel, and Dacey, Brandes contends that the prohibition in his disbarment order against the “practice of law in any form,” and “giving advice to another an opinion as to the law or its application,” pertains only to advice and opinions directed to particular clients. He rationalizes that members of the public are “clients,” but attorneys are not. Contrary to Brandes’ rationale, nothing in the language or the holdings of the judicial decisions he relies upon expressly, or impliedly, limit “clients” to non- attorneys. That is, attorneys may be “clients” just as lay members of the public. Thus, in Rowe, the attorney’s published article was not the practice of law since it 35 “neither rendered advice to a particular person nor was intended to respond to known needs and circumstances of a larger group,” and did not constitute the exercise of judgment “on behalf of any particular individual with whose circumstances [the disbarred lawyer] is directly acquainted.” (Rowe, 80 NY 2d at 342 [italics added]). In El Gemayel, it was stated that “such advice or services must be rendered to particular clients.” (El Gemayel, 72 NY2d at 706 [italics added]). In Dacey, the actions of the non-attorney in publishing a book and forms relating to “How to Avoid Probate,” were not the practice of law, because, as the dissent stated, “There was no personal contact or relationship with a particular individual.” (Dacey, 28 AD2d at 174 [italics added]). These decisions did not exclude attorneys from being the “particular person,” or the “particular individual,” or one of the “particular clients,” or part of the “larger group.” This interpretation is reinforced by Judiciary Law§ 90 (2), requiring disbarment orders to forbid “the giving to another of an opinion as to the law or its application, or of any advice in relation thereto” [italics added]. No reported decision has interpreted “another” to exclude lawyers from its coverage. As one ethics opinion stated, “The danger that an unsuspecting member of the public, or even other lawyers may be misled as [to] the status of a disbarred lawyer is too grave to ignore.” (NY County Lawyer’ Assn Comm on Prof Ethics Op No. 666[1985]). 36 Brandes also takes issue with that aspect of the Appellate Division’s decision holding that, under the guise of being a paralegal, he applied his expertise as a noted authority and expert on New York family and divorce law in giving advice and opinion to an attorney regarding a particular aspect of a difficult case, thereby exercising professional judgment directed at the legal problem of a particular client, notwithstanding that Brandes himself had no direct contact or relationship with the client. Absent a “direct” if not “personal” contact or relationship with a client, Brandes reasons, he did not engage in the practice of law. This is erroneous. The practice of law may also involve rendering advice, opinion, or the exercise of professional judgment directed at the legal problem or circumstances of a client, even where that occurs through, or at the direction of, another attorney. (Buckley v. Slocum Dickson Medical Group, 111 F Supp3d 218 [ND NY 2015]). The distinction “between conduct directed at the public generally and conduct occurring at the direction of attorneys regarding a particular client” is the focus of analysis as to what activity constitutes the practice of law. (Id. at 223). In Buckley, the federal district court excluded from the calculation of an attorney fee award in an ERISA case, work performed for the requesting attorney by a 37 paralegal who was a disbarred attorney. It held that the disbarred attorney’s activity constituted the unauthorized practice of law, and for which payment was prohibited under applicable provisions of ERISA law. The Buckley court determined that the disbarred attorney provided services “directed toward a particular client.” (Id.). Citing, among other cases, the Second Department’s decision in Matter of Brandes, the court stated that “disciplinary proceedings appear to suggest that the act of providing ‘paralegal or clerical services’ to members of a law firm may fall on the wrong side of the boundary between what a lay person may permissibly do and what constitutes the unauthorized practice of law.” (Id.). In Henig v. Quinn Emanuel Urquhart & Sullivan LLP (2015 US Dist LEXIS 172823 [SD NY, Dec 30, 2015, No. 13-CV-1432 (RA)]) an attorney who worked directly with attorneys, and not clients, in a litigated matter, was found to have engaged in the practice of law. In Henig, an attorney who had signed an agreement with an entity that provided law firms with attorneys and paralegals on a contract basis, was employed on a temporary basis by a law firm to conduct a “first level” document review in connection with discovery in a commercial litigation matter being handled by the law firm. The attorney was part of a document review team that performed duties including identifying documents that 38 were responsive, privileged, or confidential, and operated under guidelines provided by the law firm in a “presentation” given to the temporary contract employees. After the team review, attorneys for the law firm again reviewed them prior to production. In his lawsuit against the law firm, the contract attorney sought overtime compensation under the Fair Labor Standards Act. The defendant law firm argued that the plaintiff attorney fell within a provision of the FLSA which exempted from its coverage attorneys engaged in the practice of law. The plaintiff attorney contended that he did not practice law. He argued that in performing the document review, he merely applied specific protocols provided by the law firm, which prescribed the criteria to be used in tagging documents as responsive; that he rotely followed instructions that any document that went from an attorney to a client or vice versa should be tagged as attorney-client privileged; and that he automatically tagged as work product privileged documents that had already been labeled as work product. In short, the attorney argued that he did not make independent legal judgments or interpretations of the documents. The federal district court dismissed the suit, finding that the attorney was engaged in the practice of law, so that the exemption from FLSA coverage applied. Applying New York law to the question of whether the activity constituted the practice of law, the federal district court reasoned that the document review required the 39 attorney to make judgments drawing on his legal knowledge. The court concluded that the attorney “exercised legal judgment as part of a team engaged in the process of ‘rendering . . . legal advice and opinions directed to [a] particular client [].’ Plaintiff was therefore engaged in the practice of law under New York law.” (Id. at *27-28, citing Rowe, 80 NY2d at 341-42). In line with these authorities, the Appellate Division correctly determined that Brandes provided legal services to clients. E. Disbarred Attorneys Are Not the Same As Lay Persons And May Not Engage In All Law-Related Activities Which Nonlawyers May Perform. Equating his status to a non attorney lay person, Brandes urges that his conduct in providing paralegal services could not be the unauthorized practice of law, since his services were identical to those a lay person may perform. But the law in this regard is not as clear or settled as Brandes would have it. Brandes is a disbarred lawyer, and “when an attorney has been disbarred he has been pronounced unfit for further professional activities.” (Matter of Treadwell, 175 AD 833, 842 [1st Dept 1916]). “A suspended or disbarred attorney holds approximately the same status as one who has never been admitted [internal citation omitted]” but not an identical status, “and there are some law related activities which such attorneys have been permitted to engage in,” but not 40 necessarily all such activities. (Matter of Rosenbluth, 36 AD2d 383, 385 [1st Dept 1971] [italics added]). For these reasons, Brandes is significantly different from a lay person never admitted to practice. As a disbarred attorney, Brandes’ post- disbarment conduct is regulated by a disbarment order that essentially prohibits involvement in many law-related activities, a hindrance not applicable to a nonlawyer. New York courts have not provided a bright line rule about the limits of law-related activities that disbarred lawyers may engage in. Instead, they have addressed the issue tangentially, on a case by case evolution. From these cases, some generalizations may be discerned. A disbarred attorney may, perhaps, engage in law-related activities if he or she is qualified to do so, but not if the qualifications derive from being an attorney. When professional expertise enters the activity, and that activity is customarily performed by lawyers, it is forbidden to the disbarred lawyer, even if lay persons may perform the same acts. In Matter of Raskin (217 AD2d 187 [2d Dept 1995]) an attorney, Wagner, had referred clients to Raskin. After Wagner was disbarred, Raskin accepted other legal work from the same clients, but only if the disbarred attorney assisted him in the matter. Raskin thereafter employed Wagner as a law clerk, who, among other things, did research and drafted any papers Raskin requested, subject to Raskin’s 41 review; drafted a summons and complaint for the action, which, after review by Raskin, was served; and researched and prepared supporting papers, including a brief which Raskin reviewed and edited; dictated a letter to Raskin’s secretary that communicated directly with opposing counsel; and on one occasion signed Raskin’s name to correspondence sent to the court. Raskin was suspended for one year for, inter alia, assisting Wagner in the unauthorized practice of law. Proopis v. Equitable Life Assurance Society (183 Misc 379 [Sup Ct Kings County 1944]) involved an action by Proopis, the plaintiff, against an insurance company regarding allegedly usurious loans made by the insurance company. Proopis’ lawyer was disbarred for reasons unrelated to the action, and new attorneys were substituted. Proopis’ new lawyers announced that the disbarred lawyer would be present at an examination before trial of the defendant insurance company, as an actuarial expert. The defendant moved to exclude the former lawyer from the examination because of his disbarment, and the court sustained the objection. The court cited Judiciary Law § 88 (2) (the predecessor to section 90 [2]), which commanded that the disbarred lawyer “desist and refrain from the practice of law in any form, either as principal or agent as agent, clerk or employee of another” and forbade “the giving to another of an opinion as to the law or its application, or of any advice in relation thereto” [italics in original]; and referred 42 to several earlier judicial decisions. (Id. at 381). The court stated that the fact that the disbarred lawyer was the former attorney for the plaintiff, while an aggravating factor, was not the determining factor. (Id.). Rather, it concluded that the objection must be sustained because the employment of the disbarred lawyer to assist counsel as an actuarial expert at the examination was forbidden by section 88 (2), and contrary to decisions of New York courts, and to ethical principles. (Id. at 381-382). It also found that the disbarred lawyer may not be present at the examination as an actuarial expert, despite that a nonlawyer actuary could do so. The determination made herein does not preclude plaintiff from having an actuarial expert present to assist counsel at the examination before trial provided that the actuarial expert is not a disbarred lawyer. Nor does it prevent the former lawyer from doing his work as an actuarial expert so long as he refrains from violating the provisions of the law applicable to those who have been disbarred as attorneys and counsellors at law. Certain it is that our law rigidly excludes those who have been disbarred from the slightest participation in the work of a lawyer or of his office to which the employment, as a layman, there could not be the slightest objection were it not for the fact of disbarment. (Id. at 382 [italics added]). In Matter of Sutherland (252 AD 620 [1st Dept 1937]) where an attorney shared offices with a disbarred attorney and permitted the disbarred attorney to perform the duties of a law clerk on numerous occasions, the attorney was suspended for six months for employing the disbarred lawyer. 43 Matter of Ratafia (268 AD 987 [2d Dept 1944]) held that a disbarred attorney may not serve as a senior law clerk in the New York State Labor Department, examining and preparing contested cases for hearings before referees, disposing of applications for adjournments, initiating investigations, and issuing subpoenas. Such conduct violated the order disbarring him, which provided that he refrain from engaging in the practice of law in violation of Judiciary Law § 88 (2) (the predecessor to the present section 90 [2]). Matter of Katz (35 AD2d 159 [1st Dept 1970]) ruled that a suspended attorney may not be employed by a city marshal, since the work of the marshal “is closely allied with the courts and judicial proceedings,” and the duties “include the enforcement of court orders” and related activities, so that employment of the suspended attorney would “bring the administration of justice into disrepute.” (Id. at 160). “Activities such as ‘preparing legal memoranda and documents to be filed in court’ – even if signed by an admitted attorney – or conducting interviews with clients are forbidden to a suspended or disbarred lawyer.” (Farb v. Baldwin Union Free School District, 2011 US Dist LEXIS 109006 [ED NY, Sept 26, 2011, No. 05-CV-0596 (JS/ETB)]). Several ethics opinions have examined the propriety of employing 44 suspended or disbarred attorneys as paralegals. The New State Bar Association stated that it is improper for a lawyer or law firm to employ a suspended or disbarred attorney in any capacity related to the practice of law, and that what acts constitute the practice of law is a question of law for the Appellate Division. (New York State Bar Assn Comm on Prof and Jud Ethics Formal Op No. 1998-1 [1999]). The New York County Lawyers’ Association opined that an attorney may not employ a disbarred attorney as a law clerk, where the functions include conducting depositions and attendance at real estate closings. It adopted the view that: It is clear that the employment by a lawyer or law firm of a disbarred lawyer, in any capacity related to law is improper . . . The danger that an unsuspecting member of the public, or even other lawyers may be misled as [to] the status of a disbarred lawyer is too grave to ignore. Moreover, such employment, especially for the purposes stated in the present inquiry, runs counter to the intent of the order imposing discipline. (NY County Lawyers’ Assn Committee on Prof Ethics Op No. 666 [1985]). The Nassau County Bar Association reviewed the issue of whether an attorney may employ a disbarred attorney as a paralegal, to handle drafting of documents, research, and organizing files. It reasoned that statutory and code provisions “impliedly place greater restrictions upon the ability of a disbarred lawyer from earning a living by use of his or her training and talent and experience than are 45 encountered by non-lawyers generally.” (Nassau County Bar Assn Comm on Prof Ethics Op No. 92-15 [1992]). Disbarred and suspended attorneys, such as Brandes, when confronted with allegations of unauthorized practice of law, often claim that they only engaged in the same conduct which a lay person could lawfully perform. Other jurisdictions that have directly addressed these questions are ambivalent, and divided, over the status of disbarred lawyers, and the scope of permissible law-related services they may perform. (For an overview of jurisdictions, see In re Mitchell, 901 F2d 1179, 1183-88 [3rd Cir 1990] and In re Blake, 2016 OK 33 [2016] [Gurich, J. concurring op]. See also David Rand, Jr., Annotation, Nature of Legal Services or Law- Related Services Which May be Performed for Others by Disbarred or Suspended Attorneys, 87 ALR 3d 279). These authorities contradict Brandes’ confident, but erroneous, belief that he is free without qualification or limitation to perform any law-related services that a lay person may do. The Supreme Court of North Dakota in In re Christianson, 215 NW2d 920 (ND 1974), provided a particularly thoughtful analysis on this point: In view of this contention, and in view of the contention of the petitioner that he is permitted to engage in any activities which laymen may lawfully perform, even though such activities are also normally considered the practice of law when engaged in by a licensed attorney, we are confronted 46 with two difficult problems: (1) to what extent, if any, may a suspended attorney engage in activities which, when performed by a licensed attorney, constitute part of his practice of law, but which may also be performed lawfully by laymen; and (2) to what extent, if any, may a suspended attorney assist a licensed attorney in activities which would constitute the practice of law? On the one hand, it seems extremely harsh to rule that a suspended lawyer, who has already been subjected to the deprivation of his means of livelihood, should further be deprived of opportunities to earn a living by doing things which laymen are permitted to do, such as investigating accidents, preparing tax returns, filling out simple deed forms as a real estate broker, and doing research as a law clerk to a licensed attorney. On the other hand, the petitioner appears to take the extreme position that he is permitted to do anything that a layman could do, and, as a law clerk, everything that an attorney could do except appear in the courtroom. To adopt this view would mean that the suspension of one’s license to practice law would be a penalty lightly borne. A line must be drawn between somewhere between these two extremes. (Id. at 924). Continuing, the court stated: A suspended lawyer is not the same as a layman. The public knows that he has a legal education, that he has engaged in the practice of law, and that his work and his opinions are presumably more valuable on that account. We cannot accept the argument that a disbarred or suspended lawyer may engage in all activities which nonlawyers also perform. On the other hand, we are not willing to foreclose him from acts which he is permitted to perform by reason of alternative qualifications, such as a real estate broker’s license. In the case of In re Peterson, 175 NW2d 132 (ND 1070), the petitioner made his living during suspension as an abstracter without being criticized for so doing. A suspended lawyer may engage in some activities if he is otherwise qualified to do so, but not if his qualifications come from having been a lawyer. For example, a suspended lawyer who is also a public accountant may prepare tax returns as a public accountant. But a suspended lawyer 47 may not prepare the papers necessary to incorporate a corporation merely because one of the stockholders of the corporation might also be able to fill in the blanks on a printed form by himself. When professional expertise enters into the activity, and when the activity is one which is customarily performed by lawyers, then such activity is forbidden to a suspended attorney, even though under some conditions members of other professions may sometimes be allowed to perform the same acts. (Id. at 925-926). Whatever the ambiguities in the law, in this instance Brandes is not the same as a lay person paralegal. The subcommittee and the Appellate Division properly concluded that Brandes’ self-identification and self-promotion as an expert in New York matrimonial law was a factor that distinguished him from other non-lawyer paralegals. Manifestly, Brandes marketed and touted his expertise in New York matrimonial and family law, derived from having been an attorney, to differentiate himself from the average paralegal. This circumstance certainly transformed Brandes’ situation from a traditional paralegal-attorney relationship into something more akin to an attorney-client relationship. But, as a disbarred lawyer Brandes may no more provide legal services based on his peculiar competence or knowledge than may a lay person in an occupation or field of endeavor who has acquired special competence relevant to the law in that area. In many fields of endeavor laymen acquire specialized knowledge which is relevant to the practice of law in that area. Thus accountants 48 may know a great deal about tax law and labor consultants much about labor law. A specialized area of competence does not, however, entitle these laymen to engage in the business of giving legal advice based on their knowledge of the subjects. (Roel, 3 NY2d at 231). An example of this is Application of New York County Lawyers Association (273 AD 524 [1st Dept 1948], affirmed sub nom 299 NY 728 [1949]). There, an accountant rendering accountant services to a company, performed research and provided a memorandum to the company, giving advice regarding whether a municipal excise tax levied against it could be compromised. He acknowledged that he made a business of providing similar services to other clients. The Appellate Division determined that the accountant had engaged in the unauthorized practice of law. It recognized that the area of taxation “is a hybrid of law and accounting,” and that as a matter of practical administration, accountants may deal with “incidental questions of law which may arise in connection with auditing books or preparing tax returns.” Notwithstanding this, it ruled: “But if the question is such a problem that an outside consultant, besides the accountant preparing the tax return, must be called in to do legal research of the kind which was necessary in this case and to advise as to the none too clear, if not obscure law, that consultant must be a lawyer.” (Id. at 536). 49 POINT TWO THE DENIAL OF BRANDES’ REINSTATEMENT APPLICATION SATISFIED APPLICABLE DUE PROCESS STANDARDS. Brandes posits several iterations of due process contentions, none of which have constitutional substance. A. Due Process – General Principles To succeed on a claim of deprivation of property without due process of law, a litigant must “must first identify a property right, second that the state has deprived him of that right, and third show that the deprivation was effected without due process of law.” (Henry v. City of New York, 2016 US App LEXIS 2999, *2-3 [2d Cir, Feb. 22, 2016, No. 15-201-CV], quoting Local 342, Long Island Public Services Employees v. Town Board of Huntington, 31 F3d 1191, 1194 [2d Cir 1994]). A substantive due process claim requires proof of a cognizable property interest, and that this interest was infringed or deprived by governmental conduct that was arbitrary, irrational, or outrageous, such that it “shocks the conscience.” (County of Sacramento v. Lewis, 523 US 833, 847 [1998]; Clubside, Inc. v. Valentin, 468 F3d 144, 152 [2d Cir 2006]; Natale v. Town of Ridgefield, 170 F3d 258, 262 [2d Cir 1999]; accord Bower Associates v. Town of Pleasant Valley, 2 50 NY3d 617, 627-629 [2004]). The point of departure in assessing due process protections in attorney admissions and reinstatement matters, is the general rule that “it is undisputed that a State has a constitutionally permissible and substantial interest in determining whether an applicant possesses ‘the character and fitness requisite for an attorney and counselor-at-law.’ ” (In re Griffiths, 413 US 717, 722-723 [1973], quoting Law Students Research Council v. Wadmond, 401 US 154, 159 [1971]; Dacey v. New York County Lawyers’ Association, 290 F Supp 835, 840-841 [SD NY 1968], affd 423 F2d 188 [2d Cir 1969], cert denied 398 US 929 [1970]). “The interest of the States in regulating lawyers is especially great since lawyers are essential to the primary governmental function of administering justice, and have historically been ‘officers of the courts.’ ” (Goldfarb v. Virginia State Bar, 421 US 773, 792 [1975]). This Court is in accord with this overarching principle: “It is undisputed that New York has a constitutionally permissible interest to assure that those admitted to the Bar possess knowledge of the law as well as character and fitness requisite for an attorney.” (Matter of Gordon, 48 NY2d 266, 273 [1979]). 1. No Property Interest in Reinstatement Coverage under either procedural or substantive due process requires that Brandes have legally cognizable liberty or property interest. Reinstatement to the 51 practice of law is not such an interest. In frequently cited language the United States Supreme Court explained in Board of Regents v. Roth (408 US 564 [1972]), to hold a legally cognizable property-type interest in a government benefit, an applicant “must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” (Id. at 577). The mere hope or expectation for the benefit is insufficient. (RRI Realty Corp. v. Village of Southampton, 870 F2d 911, 918 [2d Cir] cert denied 493 US 893 [1989]); Bower, 2 NY3d at 627). “The mere violation of a state statute does not automatically give rise to a violation of federal Constitutional rights.” (Yale Auto Parts , Inc. v. Johnson, 758 F2d 54, 59 [2d Cir 1985] [citation omitted]). The “entitlement” component of this test is applied with “considerable rigor.” (RRI Realty, 870 F2d at 246; Bower, 2 NY3d at 628). “Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law – rules or understandings that secure certain benefits and that support entitlement to those benefits.” (Roth, 408 US at 577; see Deas v. Levitt, 73 NY2d 525, 531 [1989]). “In considering whether a legitimate claim of entitlement, or right, is granted by 52 State law, ‘the focus is on the relevant statute, regulation, or contract establishing the eligibility for the benefit at issue [internal citation omitted]. Thus, the focus of the respondent’s claimed property interest must be on the laws from which the licenses derive.” (Daxor Corp. v. State Department of Health, 90 NY2d 89, 98 [1997]). However, where conferral of the benefit is based upon discretion of the issuer, there is generally no entitlement to the benefit. (Gagliardi v. Village of Pawling, 18 F3d 188, 192 [2d Cir 1994]). “Entitlement analysis focuses on the degree of official discretion enjoyed by the issuing authority not on the estimated probability that the authority will act favorably in a particular case . . an entitlement does not arise simply because it is likely that broad discretion will be favorably exercised [internal citations omitted].” (RRI Realty, 870 F2d at 918). “As has been noted in other contexts, what is central to this analysis is whether the law accords discretion to the authority: property interests do not arise in benefits that are wholly discretionary.” (Daxor, 90 NY2d at 98). As discussed in Point I above, in New York the reinstatement of disbarred attorneys is wholly within the discretion of the Appellate Divisions, so that compliance with the criteria for readmission does not create a property right in reinstatement. 53 2. Procedural Due Process in Attorney Admissions Even if Brandes has a protected property interest in reinstatement, the level of procedural and substantive process due him is tempered by the nature of the state interest involved in the admission of persons to the bar. Certainly, New York’s wide latitude in determining what constitutes good character and fitness, and the criteria used in denying admission on the ground of lack of that character and fitness, is subject to the demands of procedural due process. (Schware v. Board of Law Examiners of New Mexico, 353 US 232, 238 [1957]). But the interest of a state in limiting admission to only those applicants possessing character and fitness, and the requirements of due process, are not incompatible. “A State can require high standards of qualification, such as moral character or proficiency in its laws, before it admits an applicant to the bar, but any qualification must have a rational connection with the applicant’s fitness or capacity to practice law.” (Id. at 239). Accordingly, there must be some basis or quantum of evidence to support a finding of lack of character or fitness. (Id.). The standard of due process to be applied in attorney admissions is malleable. “[D]ue process is a flexible concept calling for such procedural protection as a particular situation may demand.” (Medicon Diagnostic 54 Laboratories, Inc. v. Perales, 74 NY2d 539, 546 [1989]). As regards admission to the bar: The constitutional requirements in this context may be simply stated: in all cases in which admission to the bar is denied on the basis of character, the applicant, at some stage of the proceedings prior to such denial, must be adequately informed of the nature of the evidence against him and be accorded an adequate opportunity to rebut this evidence . . . this does not mean that in every case confrontation and cross-examination are automatically required. It must be remembered that we are dealing, at least at the initial stage of proceedings, not with a court trial, but with a necessarily much more informal inquiry into an applicant’s qualifications for admission to the bar. The circumstances will determine the necessary limits and incidents implicit in the concept of a “fair” hearing. (Willner v. Committee on Character and Fitness, 373 US 96, 107 [1963] [Goldberg, J, concurring]). Thus, “due process does not require a hearing before a particular decision maker, or a hearing at more than one step in the process.” (Hunter v. Supreme Court, 951 F Supp 1161, 1181 [D NJ 1996], affd 118 F3d 1575 [1997], citing Opp Cotton Mills v. Administrator, 312 US 126, 152 [1941]). Moreover, the focus of procedural due process is not the merits of the grounds upon which a license to practice has been denied, “but only with what procedural due process requires if the license is to be withheld.” (Willner, 373 US at 102.). In sum, subject to these constitutional limits, New York still may exercise wide discretion in the admission of persons to the bar: 55 The license to practice law in a particular State is so local in nature, even to the point of localized admission to practice before the various courts, that federal constitutional standards have not altered the traditionally wide discretion afforded State courts “in the establishment and application of standards of professional conduct and moral character to be observed by their court officers.” (Mildner, 405 F Supp at 192; citing Erdmann v. Stevens, 458 F2d 1205, 1210 [2d Cir 1972]). 3. Procedural Due Process in Reinstatement of Disbarred Attorneys. A disbarred attorney seeking reinstatement does not enjoy the same status as an original applicant for admission. Given the finding that a disbarred attorney violated the public trust in some respect, the disbarred attorney has no reasonable expectation that reinstatement is assured, and must bear a heavier burden to prove fitness and character to resume the practice of law. In Matter of Rowe (73 NY2d 336 [1989]), this Court distinguished between an applicant for admission and an attorney seeking reinstatement after suspension or disbarment: It is settled that a State cannot exclude a first time applicant from the practice of law in a manner that contravenes due process. When the criteria for admission have been met, an application should not be rejected upon charges of unfitness without an opportunity by notice for 56 a hearing and an answer [internal citation omitted]. In contrast, an attorney once admitted but subsequently disbarred for professional misconduct or commission of a felony cannot claim a similar right to reinstatement. The disbarred attorney has been granted the right to practice law but has been proven unfit because of some violation of the public trust. He or she has no right to a hearing on reinstatement, therefore, and approval or denial of the application is a matter wholly within the discretion of the Appellate Division. (Id. at 338). For these reasons, unlike a first time applicant, a disbarred attorney such as Brandes applying for reinstatement bears the burden to show “by clear and convincing evidence” that he or she “has complied with the provisions of the order” of disbarment, and “possesses the character and general fitness to practice law.” (22 NYCRR 691.11 [c] [1]). This may entail “a hearing in an appropriate case involving genuinely disputed factual issues.” (Matter of Mairs, 102 AD2d 146, 150 [1st Dept 1984]; but see Matter of Licato, 104 AD2d 20 [1st Dept 1984] [stating that the holding in Mairs was limited to appropriate cases involving genuine factual issues]). Further, the Appellate Division need not provide an applicant for reinstatement “with a more detailed statement of the reasons for denying his applications,” provided the applicant is given access to the reports from the Committee on Character and Fitness upon which the Appellate Division relied in denying reinstatement. (Matter of Citrin, 94 NY2d 459, 465 [2000], 57 motion for clarification denied, 95 NY2d 897 [2000]). Lastly, to the extent that the Appellate Division’s discretion involves the application of subjective criteria, this comports with due process. (See e.g. Mordukhaev v. Daus, 457 Fed Appx 16, 19 [2d Cir 2012] [holding that Taxi and Limosine Commission retains significant discretion to deny a license based on subjective criteria, foremost among these that license applicants demonstrate “good moral character”]). Courts in other jurisdictions are in accord. “In other words, reinstatement after disbarment should be difficult rather than easy.” (State ex rel. Counsel for Discipline of the Nebraska Supreme Court v. Mellor, 271 Neb 482, 485, 712 NW2d 817 [2006]). “Where, as here, the attorney has been prohibited from practicing law for several years, the need to meet these initial admission criteria is especially strong, so as to show competency, learning in law, and moral qualifications.” (In re Kandekore, 460 F3d 276, 280 [2d Cir 2006], cert denied 549 US 1219 [2007]). Because a petitioner for reinstatement must demonstrate moral fitness and good character sufficient to be trusted again, the petitioner must make a showing of these characteristics that overcome[s] the court’s former adverse judgment on the petitioner’s character. Accordingly, [courts of sister states] have stated that petitioners for reinstatement should be held to an even higher standard of conduct than first-time applicants because they have already demonstrated that they are a risk for unethical conduct. The majority position among courts is that the more culpable the conduct, the greater the burden for proving that one 58 is entitled to reinstatement. (Statewide Grievance Committee v. Ganim, 311 Conn 430, 456, n 24, 87 A3d 1078 [2014]; quoting In re Reinstatement of Wiederholt, 24 P3d 1219, 1224 [Alaska 2001]). “The proof of good character must exceed that required under an original application for admission to the bar, in that it must overcome the former adverse judgment as to the applicant’s character.” (State ex rel. Counsel for Discipline of the Nebraska Supreme Court v. Mellor, 271 Neb at 485). In original disbarment proceedings, the Bar has the burden of proving sufficient facts to justify a decision by the board to disbar [internal citation omitted]. However, once an attorney has been properly disbarred, he has been divested of that property right by due process of law [internal citation omitted]. . . the burden in reinstatement cases is on the disbarred attorney to prove by clear and convincing evidence that he is entitled to be reinstated. (Worley v. Alabama State Bar, 572 So2d 1239, 1242 [Ala 1990]). We consider now petitioner’s contention that he is fully rehabilitated and fit for admission to the bar. The burden of proving good present moral character is on petitioner [internal citation omitted]. Because of his prior record, petitioner also bears the burden imposed upon an applicant for reinstatement to the bar to show by clear and convincing evidence not only that he is ready to ‘return to a beneficial, constructive and trustworthy role in society’ [internal citation omitted], but also that his rehabilitation is such that he is a fit person to practice law.” (In re Loss, 119 Ill2d 186, 195-196, 518 NE2d 981[1987], appeal dismissed 484 59 US 999 [1988]). Brandes does not allege that the processes afforded him are per se inadequate. Such a claim would not be viable, since the denial of reinstatement was preceded by notice and opportunity to be heard at a hearing. Brandes was aware that he would be required to establish his character and fitness by clear and convincing evidence. He was also on notice that his paralegal business would be an issue. He was afforded the opportunity at a hearing to prove his good character and fitness and to explain his why his paralegal business did not violate his disbarment order. He simply failed to do so. Brandes sidesteps this failing with a few insubstantial arguments under the rubric of due process, which warrant only brief mention. He argues that the Appellate Division “ambushed” him with its determination that his virtual paralegal business constituted the practice of law, and violated his disbarment order. But neither the court nor the committees were obligated to give Brandes advisory opinions or warnings regarding his post- disbarment activities prior to or outside the context of his reinstatement applications. Rather, Brandes had the duty and obligation to conform his conduct to the terms of his disbarment order, and to prove his character and fitness by clear and convincing evidence. His attempt to shift his burden of proof of compliance 60 should be summarily rejected. Moreover, Brandes argument is factually specious, inasmuch as he was afforded two hearings with notice that his paralegal activities were under scrutiny. Indeed, he structured his third application to downplay, if not erase, evidence of his paralegal business. On this record, Brandes may not credibly claim surprise or entrapment. Next, Brandes alleges that he did not receive a fair hearing, reasoning that since he “testified only in generalizations, rather than specific events,” there is insufficient evidence in the record to support the conclusion that he violated his disbarment order by engaging in the practice of law. In support of this theory, Brandes culls excerpts from the Appellate Division’s decision, and argues that select phraseology in these excerpts do not track precisely his hearing testimony. This rationale is misdirected. Due process mandates that there be sound basis in reason and evidence to support the Appellate Division’s determination. It does not direct that Brandes’ testimony be “specific” as opposed to “general.” The nature and extent of Brandes’ testimony and other exhibits, describing the paralegal services he provided, suffices under due process standards to prove that he engaged in the unauthorized practice of law. Moreover, he did testify to two specific examples of real world litigation matters in which he provided his expertise to the New York lawyers, who sought his advice precisely because of his 61 expertise. Similarly, the touchstone of due process is the sufficiency of the evidence in the record, not the sufficiency, content, or format of the written decision of the Appellate Division. The decision is not the evidence, but only a summary of the evidence the court relied on to reach its discretionary determination. That the Appellate Division’s decision did not recite Brandes hearing testimony verbatim, or track his verbiage exactly, does not implicate due process at all. The written decision may, consistent with due process principles, summarize testimony; paraphrase it; add descriptive wording that reflects the inferences the court drew from it; and include language reflecting the court’s evaluation of the testimony. The challenged passages go no further than this, and are anchored in the facts contained in the record. Brandes also postulates that the referral of his application to the Committee on Character and Fitness shows that he presented prima facie proof by clear and convincing evidence that he possesses the requisite character and fitness for reinstatement. From this, he extrapolates that he should have been granted reinstatement as there was no contrary or negative evidence adduced at the hearing. This logic is flawed in several respects. First, nothing in rule 691.11 expressly or impliedly states that referral to the committee connotes that Brandes 62 submitted prima proof of fitness for reinstatement. Second, Brandes errs in his belief that once he made his prima facie showing, the burden shifted to the committee to present contrary evidence in rebuttal. At all times, Brandes had the burden of proving his fitness by clear and convincing evidence, and nothing in rule 691.11, or in court decisions, indicates that this burden ever shifts. Brandes may not obscure his failure to meet his burden of adducing facts sufficient to prove his fitness, by suggesting that the committee had an evidentiary burden to adduce facts to the contrary. Third, contrary to Brandes’ surmise, his evidence does not ineluctably prove his fitness; as demonstrated in point I above, the evidence supports inferences and conclusions demonstrating his lack of fitness. 4. Substantive Due Process “Substantive due process protects against government action that is arbitrary, conscience shocking, or oppressive in a constitutional sense, but not against government action that is ‘incorrect or ill’ conceived.” (Kaluczky v. City of White Plains, 57 F3d 202, 211 [2d Cir 1995]). “While the measure of what is conscience shocking is no calibrated yard stick,” (County of Sacramento v. Lewis, 523 US at 847 [1998]), “conduct intended to injure in some way unjustifiable by any governmental interest is the sort of action most likely to rise to the conscience- shocking level.” (Id. at 849). 63 Substantive due process is an outer limit of the legitimacy of governmental action. It does not forbid governmental actions that might fairly be deemed arbitrary or capricious and for that reason correctable in a state court lawsuit seeking review of administrative action. Substantive due process standards are violated only by conduct that is so outrageously arbitrary as to constitute a gross abuse of governmental authority. (Natale v. Town of Ridgefield, 170 F3d at 263). A merely bad decision is not the type of “conscience shocking” behavior that violates the Constitution. (County of Sacramento v. Lewis, 523 US at 849], citing Daniels v. Williams, 474 US 327 [1986]; Grune v. Rodriguez, 176 F3d 27, 33 [2d Cir 1999]). New York law is similar. “Economic regulation will violate an individual’s due process property interest, vanishingly rare in modern jurisprudence, where there is absolutely no reasonable relationship to be perceived between the regulation and the achievement of a legitimate governmental purpose.” (Brightonian Nursing Home v. Daines, 21 NY3d 570, 575-576 [2013]). Claimants alleging a substantive due process deprivation “must show that the governmental action was wholly without legal justification.” (Bower, 2 NY3d at 628, citing Town of Orangeburg v. Magee, 88 NY2d 41, 52-53 [1996]). An action which is “arbitrary, capricious and without rational basis in an article 78 sense,” is not “the egregious conduct that implicates federal constitutional law.” (Id. at 630). Rather, the action must be “so outrageous, that it may fairly be said to shock the 64 contemporary conscience.” (People v. Lingle, 16 NY3d 621, 632, [2011], quoting Gonzalez-Fuentes v. Molina, 607 F3d 864, 880 [1st Cir 2010]). Brandes has not proven that the denial of his reinstatement application “suffers wholesale constitutional impairment.” (Brightonian Nursing Home, 21 NY3d at 577, quoting Moran Towing Corp. v. Urbach, 99 NY2d 443, 448 [2003]). The Appellate Division applied its discretion to a body of evidence, and made an individualized assessment that Brandes did not prove his fitness to be lawyer. This determination, even if viewed as erroneous and vexatious, and even if accomplished by the myriad constitutional offenses that Brandes catalogues, is hardly outrageous or conscience shocking. 65 POINT THREE BRANDES SUFFERED NO DEPRIVATION OF EQUAL PROTECTION OF THE LAW Brandes’ first point in support of reversal is that he was denied equal protection under both the United States Constitution (US Const 14th Amend), and the New York State Constitution (NY Const, art I, § 11). This contention is without merit. The scope of coverage under both clauses is coextensive. (Under 21, Catholic Home Bureau for Dependent Children v. New York, 65 NY2d 344, 360 n 6 [1985], citing Dorsey v. Stuyvesant Town Corp., 299 NY 512 [1947], cert denied 339 US 981 [1950]). Equal protection essentially is a direction that all persons similarly situated be treated alike. (City of Cleburne v. Cleburne Living Center, 473 US 432, 439 [1985]; Royster Guano Co. v. Virginia, 253 US 412, 415 [1920]; Walton v. New York State Department of Correctional Services, 13 NY3d 475, 492 [2009]; Abrams v. Bronstein, 33 NY2d 488, 492 [1974]). Even so, “not every difference in treatment violates the equal protection guarantee.” (Abrams, 33 NY2d at 492). The equal protection clause “has traditionally been applied to governmental classifications that treat certain groups of citizens differently than others.” 66 (Shatney v. Laporte, 2016 US App LEXIS 3001 [2d Cir, Feb 22, 2016, No. 15- 600]; quoting Fahs Construction Group, Inv. v. Gray, 725 F3d 289, 291 [2d Cir 2013]). “[T]he prototypical equal protection claim involves discrimination against people based on their membership in a vulnerable class.” (Harlen Associates v. Incorporated Village of Mineola, 273 F3d 494, 499 [2d Cir 2001]). Disclaiming, as he must, membership in a protected class or the involvement of a fundamental right, Brandes concedes that his equal protection claim must be evaluated under the less demanding “rational basis” standard. “Unless a suspect class or fundamental right is involved, which is not the case here, classifications that create distinctions between similarly situated individuals will be upheld if they are rationally related to a legitimate government interest.” (Walton, 13 NY3d at 492; citing Port Jefferson Health Care Facility v. Winn, 94 NY2d 284, 289 [1999], cert denied 530 US 1276 [2000]; Abberbock v. County of Nassau, 213 AD2d 691 [2d Dept], appeal denied 86 NY2d 708 [1995]). Since Brandes’ equal protection claim is rooted in his contention that he was singled out for different treatment from other disbarred attorneys seeking reinstatement, the nature of Brandes’ equal protection contention is a “class of one” claim. Under this theory, a single person can claim a violation of equal protection rights based on arbitrary disparate treatment. Such a claim exists 67 “where the plaintiff alleges that she has been intentionally treated differently and that there is not a rational basis for the difference in treatment.” (Village of Willowbrook v. Olech, 528 US 562, 564 [2000]). New York courts also have applied class of one analysis to equal protection claims. (See Matter of Knight v. Bratton, 48 Misc 3d 536, 540-541 [Sup Ct New York County 2015]; New Covenant Charter School Education Faculty Association v. Board of Trustees of the State University of New York, 30 Misc 3d 1205[A] [Sup Ct Albany County 2010]). A successful class of one claim requires proof that: (1) no rational person could regard the circumstances of the plaintiff to differ from those of a comparator to a degree that would justify the differential treatment on the basis of a legitimate government policy; and (2) the similarity in circumstances and difference in treatment are sufficient to exclude the possibility that the defendants acted on the basis of a mistake. (Pappas v. Town of Enfield, 602 Fed Appx 35, 36 [2d Cir 2016]; citing Fortress Bible Church v. Feiner, 694 F3d 208, 222 [2d Cir 2012]; see Analytical Diagnostic Labs, Inc. v. Kusel, 626 F3d 135, 140 [2d Cir 2010]). Under this formulation, a class of one claimant must show that the challenged action is not only “wholly arbitrary or irrational,” but also “intentional disparate treatment.” (Giordano v. City of New York, 274 F3d 740, 751 [2d Cir 2001]). 68 “Class of one plaintiffs must show an extremely high degree of similarity between themselves and the persons to whom they compare themselves.” (Ruston v. Town Board for the town of Skaneateles, 610 F3d 55, 59 [2d Cir], cert denied, 562 US 108 [2010] quoting Clubside, 468 F3d at 159. At a minimum, there must be proof that the comparators are “prima facie identical in all relevant respects” to the claimant. (Neilson v. DeAngelis, 409 F3d 100, 104 [2d Cir 2005], quoting Purze v. Village of Winthrop Harbor, 286 F3d 452, 453 [7th Cir 2002], abrogated on other grounds in Appell v. Spiridon, 531 F3d 138 [2d Cir 2008]). Proof of this level of similarity is necessary to support the conclusion that “the plaintiff was intentionally singled out for reasons that lack any reasonable nexus with a legitimate governmental policy and that an improper purpose – whether personal or otherwise – is all but certain.” (Neilson, 407 F3d at 1105). To support his allegation, Brandes must identify at least one comparator with whom he shares an extremely high degree of similarity; in the absence of proof of the existence of a similarly situated individual against whom Brandes’ alleged discriminatory treatment can be compared, his claim fails. (Abramson v. Gettel, 607 Fed Appx 101, 102 [2d Cir 2015]; Finn v. Anderson, 592 Fed Appx 16, 19-20 [2d Cir 2014]). “Generally, whether parties are similarly situated is a fact-intensive inquiry.” (Clubside, 468 F3d at 159; Witt v. Village of 69 Mamaroneck, 992 F Supp2d 350, 363 [SD NY 2014], affd 2016 US App LEXIS 7776 [2d Cir, Apr. 27, 2016, No. 15-1338]). There is no evidence in this record of any comparator whose circumstances are prima facie identical to Brandes’. He has not made the fact-intensive inquiry required to establish a class of one equal protection claim. Brandes compares himself in conclusory fashion to the entire class of disbarred attorneys seeking reinstatement, a class far too diffuse and diverse to satisfy the “high degree of similarity” to Brandes necessary for his claim. In fact, Brandes sets himself apart from other reinstatement applicants. He has not refuted that he intentionally distinguished himself from other disbarred lawyers seeking reinstatement, based on his self-identification as an expert in New York matrimonial and domestic relations law; his self-promotion of his superior paralegal services based on that expertise; and his acknowledgment that New York lawyers retained him for paralegal services because of that expertise. As such, his was not the traditional paralegal-lawyer relationship. Further, there is nothing in the record to show that the Appellate Division intentionally singled out Brandes for an improper purpose, or that its reasons for the denying of reinstatement were not rationally related to the legitimate policy of preventing the unauthorized practice of law by unlicensed persons, including disbarred attorneys like Brandes. 70 POINT FOUR BRANDES SUFFERED NO DEPRIVATION OF FIRST AMENDMENT PRIVILEGES. “[T]he practice of law has always been subject to State regulation and is not, per se, protected by the First Amendment.” (Application of Thom, 33 NY2d 609, 614 [1973] [Burke, J., concurring, citations omitted]). “The power of government to regulate the professions is not lost whenever the practice of a profession entails speech.” (Lowe v. SEC, 472 US 181 [1985] [Rehnquist, CJ, White, J., concurring in result). With respect to the legal profession, for example, disciplinary rules may circumscribe the extrajudicial statements of a lawyer who is participating in a criminal or civil matter, where the lawyer knows or has reason to know such statements will be disseminated through public communication, and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. (See Rule of Professional Conduct [22 NYCRR 1200.0] rule 3.6). Such rules limiting trial publicity statements are constitutional. (United States v. Cutler, 815 F Supp 599 [ED NY 1993]; Matter of Fischetti v. Scherer, 44 AD3d 89 [1st Dept 2007], appeal dismissed 9 NY3d 1030 [2008]). Perhaps the most obvious example of a ‘speaking profession’ that is subject to governmental licensing is the legal profession. Although a lawyer’s work is almost entirely devoted to the sort of communication 71 that, viewed in isolation, falls within the First Amendment’s protection, we have never doubted that “[a] State can require high standards of qualification, such as good moral character or proficiency in the law, before it admits an applicant to the bar . . . (Lowe, 472 US at 228-229 [citation omitted]). This Court has likewise recognized, in relation to disbarred attorneys that “[t]he courts may, in the public interest, prohibit attorneys from practicing law and that prohibition may incidentally affect the attorney’s constitutional right to free speech by forbidding the giving of advice to clients.” (Rowe, 80 NY2d at 342.). The Appellate Division did not penalize Brandes for writing and publishing and advertising his law treatise and supplements to it, or for the news letter he authored and disseminated on his website. These activities fall within the First Amendment privilege as the Rowe decision recognized. However, unlike the disbarred lawyer in Rowe, Brandes did not confine himself to a publication pitched to a general audience; he crossed the line into the unauthorized practice of law. This implicated New York’s interest in promoting at least a minimum standard of character and fitness for reinstatement to the practice of law, and placed Brandes’ conduct beyond the protection of the First Amendment. 72 POINT FIVE THE APPELLATE DIVISION PROPERLY DETERMINED THAT BRANDES VIOLATED THE SPIRIT, IF NOT THE LETTER, OF JUDICIARY LAW § 478. Brandes devotes two of the eight points in his brief to disparaging the Appellate Division’s rule 691.10, governing the conduct of disbarred attorneys, and its requirement that he comply with “the letter and spirit of” Judiciary Law § 478. In his point IV, he complains that the rule is ultra vires the Appellate Division’s rule making authority by being inconsistent with law and beyond the scope of section 478. He further contends that requiring compliance with the sprit of section 478 is an incomprehensible duty, and offends due process. But, in his point VIII Brandes seemingly resolves his dilemma and finds a reasonable interpretation of the requirement. Claiming that the phrase “spirit of the law” does not appear in a Westlaw search, Brandes cites to a definition of “spirit” in Black’s Law Dictionary, and concludes that “spirit” is analogous to “letter” of the law. Based on this analysis, Brandes concludes he did not violate section 478. This conclusion is textually inconsistent with the dictionary definition cited; as well, it is inconsistent with decisional law. The term “spirit and purpose” of a law or statute is ubiquitous in New York decisions, particularly in statutory interpretation: 73 A basic consideration in the interpretation of a statute is the general spirit and purpose underlying its enactment, and that construction is to be preferred which furthers the object, spirit and purpose of the statute. (McKinney’s Cons Laws of NY, Book 1, Statutes § 96). This tenet of statutory interpretation appears in this Court’s decisions from the nineteenth century to the present one. In the interpretation of statutes, the great principle which is to control is the intention of the legislature in passing the same, which interpretation is to be ascertained from the cause or necessity of making the statute as well as other circumstances. A strict and literal interpretation is not always to be adhered to, and where the case is brought within the intention of the makers of the statute, it is within the statute, although by technical interpretation it is not within the letter. It is the spirit and purpose of a statute which is to be regarded in its interpretation; and if these find fair expression in the statute, it should be construed so as to carry out legislative intent, even though such construction is contrary to the literal meaning of some provisions in the statute. (People ex rel. Wood v. Lacombe, 99 NY 43, 49 [1885]). In the interpretation of statutes, the spirit and purpose of the act and the objects to be accomplished must be considered. The legislative intent is the great and controlling principle. Literal meanings of words are not to be adhered to or suffered to defeat the general purpose and manifest policy to be promoted . . . (People v. Ryan, 274 NY 149, 151 [1937] [citation omitted]). In construing statutory provisions, the spirit and purpose of the statute 74 and the objectives sought to be accomplished by the legislature must be borne in mind . . . (New York Post Corp. v. Leibowitz, 2 NY2d 677, 685-686 [1957] [citations omitted]; Hogan v. Culkin, 18 NY2d 330, 335 [1966] [same]). In this century, as recently as 2012, this Court stated: As we have repeatedly recognized, “[i]n matters of statutory . . . interpretation, ‘legislative intent is the great and controlling principle, and the proper judicial function is to discern and apply the will of the [enactors].’” To that end, ascertaining legislative intent involves considering “the spirit and purpose of the act and the objects to be accomplished.” (Matter of Sedacca v. Mangano, 18 NY3d 609, 615 [2012] [citations omitted]). Given the well established doctrine that the “spirit,” “purpose,” or “object” of a statute supercedes the letter of a statute, rule 691.10 properly directs that a disbarred lawyer obey both the spirit and the letter of Judiciary Law § 478. Section 478 comes not only with the literal language contained in it, but the legislative spirit and purpose which caused its enactment, and whose contours have been delineated through experience. Courts regularly plumb the spirit or purpose of statutes and rules. Requiring a disbarred lawyer to comply with both the letter and the spirit of section 478 poses no constitutional difficulty. The spirit and purpose of section 478 is widely understood and developed – to protect the public from persons, including disbarred lawyers, not licensed to practice law. 75 Finally, despite Brandes’ implications, the Appellate Division did not find him guilty of a crime when it determined that he violated the spirit, if not the letter of section 478. The issue in the reinstatement proceeding, civil in nature, was whether Brandes’ demonstrated his fitness for reinstatement, not his commission of a crime. (Matter of Kass, 39 AD2d 352, 355 [2d Dept 1972] [“In a disciplinary proceeding based upon a charge that the respondent committed a crime, the question is not whether, under the strict and technical rules of criminal law, he is guilty of the crime, but rather whether his conduct demonstrates professional fitness”]). CONCLUSION The decision and order appealed from should be affirmed. Dated: Hauppauge, New York June 22, 2016 Respectfully submitted Mitchell T. Borkowsky Chief Counsel Attorney for the Grievance Committee for the Tenth Judicial District 150 Motor Parkway, Suite 102 Hauppauge, New York 11788 631-231-3775 By:_______________________ Robert H. Cabble, Assistant Counsel 76 /s/ Robert H. Cabble