In the Matter of Donald William Leo, a Disbarred Attorney, Appellant.BriefN.Y.October 18, 2016State of New York Court of Appeals APPELLANT’S BRIEF DICK BAILEY SERVICE (212) 608-7666 (718) 522-4363 (516) 222-2470 (914) 682-0848 Fax: (718) 522-4024 1-800-531-2028 - Email: appeals@dickbailey.com -Website: www.dickbailey.com Appellate Division, Second Department, Docket No. 2004-00866 In the Matter of DONALD WILLIAM LEO, Resignor, A Disbarred Attorney. __________________________________________________________ GRIEVANCE COMMITTEE FOR THE TENTH JUDICIAL DISTRICT, Petitioner-Respondent, -against- DONALD WILLIAM LEO, (Attorney Registration No: 1117555), Respondent-Appellant. TO BE ARGUED BY: JOHN F. CLENNAN, ESQ. COURT OF APPEALS NO. APL-2015-00232 TIME REQUESTED: 30 MINUTES JOHN F. CLENNAN, ESQ. Attorney for Respondent-Appellant 2206 Ocean Avenue P.O. Box 1143 Ronkonkoma, New York 11779 (631) 588-6244 i TABLE OF CONTENTS Page Preliminary Statement 1 FACTS 2 Nature of the Proceedings 2 Jurisdiction 2 The Resignation 2 The Sale of the Leo Law Firm 3 The Structure of the Sales Agreement 4 Advice to Clients 5 Removal from the State 8 Course of Dealing Under the Agreement Between Leo Sr and Leo Jr 9 Applications for Nunc Pro Tunc Orders 10 Character References 14 Pro Bono Activity 15 Sub-Committee’s Report 16 Full Committee’s Determination 17 Motion to Set Aside the Full Committee’s Report on Reinstatement 17 Appellate Division Decision 19 Synopsis of the Argument 19 Questions Presented 22 ii POINT ONE: THE CONTRACT FOR THE SALE OF THE LEO FIRM FROM FATHER TO SON AND THE PRE- DISBARMENT NOTIFICATION TO EXISTING CLIENTS MADE UNDER ADVICE OF COUNSEL VIOLATED NEITHER THE DISCIPINARY RULES NOR THE ETHICAL CONSIDERATIONS IN FORCE NOR ANY COURT RULES. 23 POINT TWO: DUE PROCESS OF LAW REQUIRES, PROCEDURAL REGULARITY: ADHERENCE TO EXISTING RULES, A DETERMINATION ON THE EVIDENCE AND A WRITTEN DECISION. THE APPELLATE DIVISION SHOULD HAVE SET FORTH ITS RATIONALE SO THAT WE AVOID THE INSTANT ANONOMLY OF PUNISHING APPLICANT FOR INNOCENTLY FOLLOWING COUNSEL’S ADVICE. 37 Conclusion 52 iii TABLE OF AUTHORITIES Cases Page Apfel v. Prudential-Bache, 81 NY2d 470, 600 NYS2d 433, 616 NE2d 1095 24-25 Baird v. State Bar of Ariz., 401 U.S. 1, 91 S.Ct. 702, 27 LEd.2d 639 50,51 Bates v. State Bar, 433 US 350, 97 S.Ct 2691, 53 Led2d 810 43 Blaustein v. Pan American & Transport Co., 293 NY 281, 56 NE2d 705 50 Bridgman v. Kern, 257 AD 420, 13 NYS2d 249 30,41 Bridgeman v. Kern, 282 NY 375, 26 NE2d 297 41 Costello v. Costello, 209 NY 252, 103 NE 148 50 Cuisinarts, Inc. v. Robot-Coupe Int'l Corp., 580 F.Supp. 634 27 Ex Parte Garland, 71 US 333, 18 Led 366 39,50 51 Ex Parte Secombe 60 US 9, 19 HOW 9, 15 L.Ed 565 [1856] 37,38 Goldfarb v. Virginia State Bar, 421 US 773, 95 SCt 2004, 44 L.Ed2d 572 43 Goldsmith v. US Board of Tax Appeals, 270 US 117, 46 SCT 215, 70 L.Ed 494 44 Gordon v. Nationwide, 30 NY2d 427, 334 NYS2d 601, 285 NE2d 849 (1972) 49 Harmon v. Republic Aviation, 298 NY 285, 82 NE2d 785 30 Hecht v. Monaghan, 307 NY 461, 121 NE2d 421 (1954) 37,41 Hooper v. AGS Computers, 74 NY2d 487, 549 NYS2d 365, 548 NE2d 903 25 iv In Re Lieber, 834 NW 2d 200 (Minn 2013) 17,26 32 In Re Griffiths, 413 US 717, 93 S.Ct 2851, 37 Led2d 910 43 In Re Ruffalo, 390 US 544, 88 S.Ct. 1222, 20 Led2d 117 50 In Re Stolar, 401 US 23, 91 SCt 713, 27 LE2d 657, (1971) 51 In Re Yes Entertainment, 336 BR 203 [Bank Ct. D Del 2006] 25 Ins Co, V. ABB Power, 91 NY2d 180, 690 NE2d 1249, 668 NYS2d 143 47 JMD Holding v. Congress Fin, 4 NY3d 373, 795 NYS2d 502, 828 NE2d 604 [2005] 24 Leo v. Leo, Sup Ct, NY Co, Index No: 1033435/2012. 11 Ling Ling Yung v. Nassau County, 77 NY2d 568, 571 NE2d 669, 569 NY2d 361 47 Mandel v. Liebman, 303 NY 88, 100 NE2d 149 [1951] 24 Morris v. Snappy, 84 NY2d 21, 614 NYS2d 362, 637 NE2d 253 [1994] 24 Matter of Argentieri, 287 AD.2d 193, 732 N.Y.S. 2d 511 45 Matter of Bologno v. O’Connell, 7 NY2d 155, 196 NYS2d 90, 164 NE2d 389 31,41 Matter of Christy, 90 AD3d 1436, 938 NYS2d 356 31 Matter of Citrin, 94 NY2d 459, 727 NE2d 569, 706 NYS2d 72 41-42 Matter of Cohen, 264 AD2d 94, 704 N.Y.S.2d 547 [2000] 46 Matter of Cooper 22 NY 67 39,40 51 v Matter of Feldman, 252 AD.2d 733, 675 NYS 2d 675 45 Matter of Fields, 66 NY2d 516, 498 NYS2d 111, 488 NE2d 1223 31 Matter of Hoffman, 254 AD2d 518, 678 NYS.2d 537 45 Matter of Kulcsar, 98 AD.3d 161, 947 N.Y.S.2d 67 [1st Dept. 2012] 46 Matter of Leo, 9 AD3d 218, 780 NYS2d 360 (2004) 3 Matter of Leo, 2014 N.Y. Slip Op 94061 (App. Div. 2014) 1 Matter of Levin, 261 AD. 2d 74, 697 NYS.2d 52, [1999 45 Matter of Levy, 307 AD2d 47, 760 NYS 2d 455 [2003] 46 Matter of Maloney, 91 AD3d 780, 936 NYS2d 573 18,47 Matter of Maloney, 282 AD2d 112, 723 NYS2d 674 [2nd Dept, 2001] 47 Matter of Racer, 56 AD3d 125, 866 NYS 2d 55 [2008] 46 Matter of Scherbyn v. Boces, 77 NY2d 753, 570 NYS2d 474, 573 NE2d 562 45 Matter of Sharon B, 72 NY2d 394, 534 NYS2d 124, 530 NE2d 832 44 Matter of Silverstein, 81 AD.3d 1244, 916 NYS.2d 856 45 Matter of Siberman, 62 AD.3d 61, 874 N.Y.S. 2d 466 45 Matter of Tepper, 286 AD2d 79, 730 N.Y.S.2d 498 [2001] 46 Matter of Wiesner, 94 A.D.3d 167, 943 N.Y.S.2d 410 47 McGoldrick v. Follette, 199 Misc 492, 98 NYS2d 893 34 Milan, Miller, Berger, Brody & Miller, PC v. US, 679 F. Supp.692 9 vi Moran v. Harris, 131 Cal App 3d 913, 182 Cal Rptr 519, 28 ALR 4th 655 (1982) 35 People v. Antommarchi, 80 NY2d 247, 590 NYS2d 33, 604 NE2d 95 43 Rappaport v. Raylen Realty Corp., 204 Misc 729, 124 NYS2d 331 34 Pennington v. Ziman, 13 AD2d 769, 216 NYS2d 1 [1st Dept, 1961] 34 People v. Brabson, 9 NY2d 173, 212 NYS2d 401, 173 NE2d 277 44 People v. Medina, 44 NY2d 199, 375 NE2d 768, 404 NYS2d 588 44 People ex rel Fleming v. Dalton, 158 NY 175, 52 NE 1113 47 People ex rel. Karlin v. Culkin, 248 N. Y. 465, 162 N. E. 487 40 Picone v. Commissioner, 241 NY 157, 149 NE 336 [1925] 30 Pommells v. Perez, 4 NY3d 566, 797 NYS2d 380, 830 NE2d 278 (2005) 12 Sands, Taylor & Wood Co. v. Quaker Oats Co., 978 F.2d 947 27 Sands, Taylor & Wood Co. v. Quaker Oats Co., 507 U.S. 1042, 113 S.Ct. 1879, 123 L.Ed.2d 497 (1993) 27 Schware v. Board of Bar Examiners, 353 US 232, 1 LE2d 796, 42,43, 77 S.Ct 752 45,48, 50,51 Toomey v. NYS Legislature, 2 NY2d 446, 161 NYS2d 81, 141 NE2d 584 30 Toure v. Avis, 98 NY2d 345, 746 NYS2d 865, 774 NE2d 1197 (2002) 12 Wilner v. Committee, 373 US 96, 88 SCt 1175, 10 LE2d 224 42 WWW Pharmaceutical v. Gillette, 984 F2d 567 (2d Cir 1983) 49 vii Statutes and Regulations 22 NYCRR Sec 659.11-a 2 22 NYCRR Sec 691.10 6,18, 19,20, 23,28 32,33 34,48, 49 42 USC 1981 24 Judiciary Law Sec 70 31 Judiciary Law Sec460 31 Judiciary Law Section 90 subd 4 2,49 Not-For-Profit-Corporation-Law Section 511 25 Religious Corporation Law Sec 12 25 St. Admin Law Sec 202 31 Tax Law Sec 1105 26 Code of Professional Responsibility ABA Code 17 DR 107(b) 10,19 34 DR 2-107 7,29 DR 2-110 4,27 viii DR 2-111 4,5,26 29,34 DR 7-104 36 EC 2-34 4,11 EC 2-35 4 EC 2-36 4,11 Rules of Professional Conduct Rule 1.5 4,7 Rule 1.15 10,19, 34 Rule 1.17 4,26 29,34 Rule 4.2(a) 36 Rules of Professional Conduct 25,26 29 Constitutions US Constit Amend XIV 22,30 41,46 US Constit XIIIth Amendment 24 Legal Writtings Alexander Pope, Essay on Criticism [1711] 25 ix Devlin and Hifferman, The End(s) of Self-Regulation, 45 ALTRA LRev 169 (2008) 38 Mertens Law of Federal Income Taxation (§25:24) 9 Powell, Professional Divestiture: The Cession of Responsibility for Law Discipline, 31 ABA Foundation Research Journal 31 (1986) 37-38 Websites ABA Model Rules of Professional Conduct: Preamble A LAWYER'S RESPONSIBILITIES Sec 1 http://www.americanbar.org/content/dam/aba/migrated/cpr/mrpc/mcpr.authcheckd am.pdf 26 NYSBA, Statement of Client's Responsibilities. https://www.nysba.org/WorkArea/DownloadAsset.aspx?id=27829 27 Compensation Definition http://dictionary.law.com/Default.aspx?selected=257#ixzz3nLgOL4jw 29 Consideration Definition http://www.businessdictionary.com/definition/consideration.html#ixzz3nLhIMDlY 30 “Citrin” Case: Do Disbarred Lawyers Have Constitutional Rights? http://www.newyorklegalethics.com/citrin-case-do-disbarred-lawyers-have- constitutional-rights/ 41-42 State of Judiciary Speech http://www.nycourts.gov/ctapps/news/SOJ-2015.pdf 46 1 COURT OF APPEALS: STATE OF NEW YORK =====================================X In The Matter of DONALD WILLIAM LEO, APL 2015-00232 A Disbarred Attorney =====================================X APPELLANT’S BRIEF Preliminary Statement On a motion to disapprove the report of the Full Character and Fitness Committee and to approve, insofar as it recommended reinstatement, the report of the Sub Committee, in proceedings to reinstate Appellant as an attorney at law, former attorney Donald William Leo, Sr. appeals by permission of the Court of Appeals from a final order of the Appellate Division: Second Department (Eng, JJ, Mastro, Rivera, Skelos, Levanthall, JJ) entered December 26, 2014 which denied the motion. Matter of Leo, 2014 N.Y. Slip Op 94061 (App. Div. 2014). 2 FACTS Nature of the Proceedings The underlying proceedings were brought pursuant to 22 NYCRR Sec 659.11-a to reinstate Donald William Leo as an attorney at law.1 Jurisdiction Appellant appeals from a final order of the Appellate Division determining his motion to set aside the Full Committee’s report and to confirm insofar as it recommended reinstatement the Sub-Committee’s report. Such is a final order of the Appellate Division, reviewable for errors of law. Judiciary Law Section 90 subd 4. The Resignation Appellant Donald William Leo was admitted to practice law in the courts of the State of New York by the Appellate Division, Second Department, on June 21, 1967. In 2004, Appellant Donald William Leo, Sr., under investigation by the Departmental Grievance Committee into the management of his escrow account, resigned from the bar upon advice of counsel. The basic allegation had been co- 1 Section 659.11-a of 22 NYCRR authorizes reinstatement of an attorney who has voluntarily resigned upon an application made seven years after his removal from the roll of attorney. 3 mingling of funds some four to five years earlier in 1998 and 1999. No loss was incurred by any client. (R 135) At the time of resignation, no charges had been formally preferred; no hearing was held. (R 139) The resignation was accepted by order of the Appellate Division: Second Department on June 28, 2004, (R 11), and an order entered on June 28, 2004. (R 11), Matter of Leo, 9 AD3d 218, 780 NYS2d 360 (2004).2 The Sale of the Leo Law Firm Three months prior to the Appellate Division’s acceptance of Mr. Leo’s resignation the elder Leo sold his law practice to his son Donald William Leo, Jr. who had been an employee of his father’s firm for about 10 years. The agreement dated March 24, 2004 was completed by a reputable Suffolk County law firm. (R 234-254) The firm had come highly recommended to both Leos as one known for its expertise in commercial matters, disciplinary proceedings and professional ethics. The attorney who specifically represented the elder Mr. Leo presently serves on the Character and Fitness Committee and has done so for many years. He also served as a member and Chair of the Grievance Committee for the 10th Judicial District. As president of the Suffolk County Bar Association, he had overseen the work of 2 Although the Appellate Division’s order recites that Mr. Leo, Sr. represented himself in his submitting his resignation, throughout proceedings, which led to his resignation, Mr. Leo was represented by independent counsel whose office drafted the agreement to sell the Leo practice. (see R 139) 4 the local Bar Association grievance committee and Bar Association Ethics Committee. (R 31) The Structure of the Sales Agreement3 The agreement prepared by Mr. Leo Sr.’s expert counsel was structured with a set purchase price plus a percentage of pending cases. 10. An “Agreement to Purchase” was drafted by [independent counsel] and executed on March 24, 2004. The aforesaid agreement provided that the purchase price was One Hundred Thousand Dollars ($100,000.00) plus a scheduled percentage of the fees due on the [559] outstanding personal injury cases… 11. A Bill of Sale was executed by [Leo, Sr.] transferring my law practice and all of its assets to [Leo, Jr.] on March 31, 2004… 12. I was advised that the aforesaid sale of the law practice was being made pursuant to the provisions of DR 2-111, EC 2-34, EC 2-35 and EC 2-36 which were then in effect… (R 32) 3 Along with DR 2-110, DR 2-111, EC 2-34 and 2-35 in force at the time of the sale of the Leo practice, the current provisions (Rule 1.5, 1.17) do not require specific court approval of the structure of the terms of the sale, the determination of the consideration for the sale or the manner the calculation of the payments are made in consequence of the sale. EC 2-34 Lawyers…should have the ability to sell law practices, including good will, provided certain conditions, designed primarily to protect clients, are satisfied. EC 2-35 Notice to clients of the sale of the practice should be timely provided, preferably as soon as possible after an agreement has been reached by the seller and the buyer, and in any event no later than as soon as practicable after the day of closing. The sale of litigated matters does not relieve the seller of his or her obligations under DR 2-110 [to assure continuity of representation following] withdrawal. 5 In drafting the agreement, independent counsel, after thoroughly auditing the files, estimated the value of the firm at $1,000,000. (R 156) The resulting agreement provided that the son would pay a flat $100,000 at the rate of $10,000 per year for 10 years. (R 148) This represented the intangible good will of the firm, its telephone and location as well as its tangible movable personal property. (R 150, 236) Separately Leo, Jr., would reimburse his father approximately $500,000 in disbursement the elder Leo had laid out on approximately 550 pending cases. (R 145) The final item to be paid was pursuant to an agreed allocation of a variable portion of any awards on cases pending as of the date of the elder Mr. Leo’s retirement from practice. (R 153, R 244 passim) The agreement specifically refers to the ethical considerations invoked in the drafting of the agreement. (R 238) Advice to Clients On March 30, 2004, in accordance the rules then in effect (DR 2-111[c] now Rules of Professional Conduct Sec 1.17[c]), Donald Leo, Sr. advised his clients of his intended retirement, the sale of his practice to his son Donald Leo, Jr and their right to remove their files and the manner in which this could be done. 6 I am writing you this letter to advise you that as of April 1, 2004 my wife and I will be moving and relocating to Lenoir City, Tennessee. I am presently in the process of transferring my law practice and law office assets to my son Donald W. Leo, Jr… If you decide to retain other counsel kindly retain your new attorney and have him or her contact our office and we will be glad to arrange for the transfer of your file… If you wish to continue with Don and our new team of associates there is no need for you to contact us at this time. If you would like to talk to us or if you any questions concerning the progress of your case please call us for an appointment at any time. (R 17) Expert counsel intensively supervised every aspect of the elder Leo Sr.’s actions including the drafting of the resignation letter. 8. My attorney…[had] explained…[the] benefits [of resignation:] (1) I would be able to sell my law practice to my son before the resignation became effective and thereby avoid the necessity of sending letters to all of our clients advising them that I had been disbarred. (2) My attorney and his firm would be able to handle the sale of my law practice to my son and structure the sale so that my son would be able to send me money, as needed, to pay the purchase price of the sale without the necessity of obtaining of any prior court approvals.4 4 The rule governing compensation of disbarred attorneys does not specifically address situation in which a pre-disbarment contract for the sale of a law firm has provided a formula for calculating the sales price. 22 NYCRR 691.10 (b) Compensation. A disbarred, suspended or resigned attorney may not share in any fee for legal services performed by another attorney during the period of his removal from the bar. A disbarred, suspended or resigned attorney may be compensated on a quantum merit basis for legal services rendered and disbursements incurred by him prior to the effective date of the disbarment or suspension order or of his resignation. The amount and manner of payment of such compensation and recoverable disbursements shall be fixed by the court on the application of…the disbarred, suspended or resigned attorney… 7 (R 31-32) After June 28, 2004, Donald William Leo Sr., upon the specific advice of counsel, did not notify any former clients in writing that he had been disbarred. After March 31, 2004, he was no longer in practice. Thus, at the time of the disbarment in June 2004, he had no clients to notify. Mr. Leo, Sr. was specifically advised by his lawyer that there was no requirement to notify former clients of events which transpired after the sale of the practice. Mr. Leo, Sr., explained: Mr. LEO: Well, actually, leading up to January 21, 2004 [resignation]…[my attorney] worked out a plan where I would resign, sell my practice to my son, and that everything would be in order so that when the requisite period had ended, I would be able to apply for reinstatement. Ms. MORAN: As part of your winding up of your practice, did you notify your clients? Mr. LEO: Oh, yes. Ms. MORAN: Did you send them (sic) letters? Mr. LEO: Yes…[by registered mail] * * * * SUBCOMMITTEE MEMBER BESUNDER5: The letters were written on the letterhead of Leo & Leo; correct? The former Code of Professional Responsibility contrary to the belief of the committees did not “prohibit payment to a former partner or associate pursuant to a retirement or separation agreement.” DR 2-107[b] now Rule 1.50[h]. 5 "The Subcommittee of the Character and Fitness Committee assigned to investigate the Appellant's application for reinstatement consisted of two highly respected attorneys. John L. Juliano, Esq. was appointed as Chairman and Harvey B. Besunder, Esq. was appointed as a member. Mr. Besunder was appointed as a member of the New York State Commission on Statewide Attorney Discipline, earlier this 8 Mr. LEO: Yes. Ms. MORAN: What other actions did you take, Mr. Leo, with respect to winding up your practice? Mr. Leo: [My attorney] indicated…that…paperwork [would have to be] done to convey my law practice to my son. You just can’t turn the practice over to [your son] and walk out the door, …two[other] members of [my attorney’s] law firm…prepar[ed] the contract, [and] the bill of sale and [in order to insure]…full compliance with the law… (R 139-142) I was told that by resigning and leaving before the Appellate Division acted [on the resignation], I never have to disclose to [former] clients that I had been disbarred because my son at that point in time had taken over the cases and he was the attorney of record. (R 17-18, 50-51) Removal From The State On April 1, 2004, Leo Sr. permanently moved to Tennessee, ending 37 years of practicing law, leaving the law behind him. (R 21, 54) “I’ve been managing the family farm…I’m a gardener…I get on the mower and mow for hours.” (R 168- 169) year. As a member, Mr. Besunder helped frame the "Final Report to Chief Judge Johnathan Lippman of the Court of Appeals and the Administrative Boards of the Courts". Both Mr. Juliano and Mr. Besunder conducted a thorough investigation of the Appellant's application for reinstatement. Transcripts of the two hearings held by them can be found on pages 127 through 233 of the Record on Appeal. Their report dated April 14, 2014, which "firmly recommends reinstatement" can be found on pages 15 through 23 and pages 48 through 56 of the Record on Appeal. 9 Course of Dealing Under the Agreement Between Leo Sr. and Leo Jr. Following removal to Tennessee, the elder Leo received sporadic payments form his son. In the initial years following Leo Sr.’s departure from 2004 up to 2007 (R 146), Mr. Leo, Sr. received, in addition to occasional payments of the purchase price, reimbursement of disbursements from his son. (R 147-148) No 1099’s were created for the reimbursement of the disbursements because disbursements, when extended, are not a taxable deduction; when as and if returned at the end of a successful litigation disbursements are not taxable. (R 144)6 Essentially because the purchaser was the seller’s son, the seller had not strictly enforced the agreement. (R 148, 149, 151) [W]hen your son paid you did he pay you upon an individual case settl[ing?] Mr. Leo [Sr.] …it would be more like, I would call [Donald Leo, Jr.], he would write a check… (R 151) Consistent with advice of his counsel the elder Leo did not perceive this money received to be counsel fees. Rather, the elder Leo believed he was accepting payments from the sale of the practice. 6 “Lawyers who advance court costs on behalf of their clients cannot deduct the costs as business expenses where the client is ultimately responsible for payment; such advances are treated as loans, not expenses.” Mertens Law of Federal Income Taxation (§25:24) Milan, Miller, Berger, Brody & Miller, PC v. US, 679 F. Supp. 692 (DC, ED, Mich 1988) 10 Subcommittee member Besunder: Having read Rule 691.10 on compensation, would you agree that in your acceptance of fees, that you are not in compliance with the rule for whatever reason? Mr. Leo: I was not accepting fees. I was accepting a purchase price from my son. (R 52) In applying for readmission, Mr. Leo, Sr. described his motive: I miss [the practice of law] terribly and I’ve been in pain ever since the day I resigned…I [believe] I can make a contribution to the profession. (R 55) Through positive contributions to the profession, Mr. Leo, Sr. would like to atone for the embarrassment he caused his colleagues and judges as a result of his “serious error of judgment.” (R 55) Applications for Nunc Pro Tunc Orders On Leo Sr.’s initial hearing upon his application for re-admission, the Character and Fitness Sub-Committee suggested that Mr. Leo Sr. apply for nunc pro tunc orders approving fees and disbursements sought by Leo Sr in accordance with the 2004 agreement. (R 185-188) Six separate proceedings7 were brought in 7 In all these proceedings Leo, Jr was represented by separate counsel who did not oppose the applications. It was the opinion of Leo Jr.’s counsel that the payments, sporadic as they may have been complied with DR 107[b], now rule 1.15[a] as payments to a “forme[r] associate[e]…pursuant to a separation or retirement agreement.” 11 five different counties to approve all fees and disbursements. (R 122) All fees and disbursements were approved nunc pro tunc. (R 53) In reviewing one of the numerous petitions presented to terms of the Supreme Court in numerous counties, Justice Hunter observed, in granting the petition before him. Petitioner alleges that the sale of his law practice was made pursuant to EC 2-34, EC-36…Petitioner alleges that he accepted compensation from respondents in good faith that he was fully complying with the Rules of Professional Conduct, but now believes that he may have been in error in not obtaining the court’s permission to receive such compensation. Petitioner now seeks the approval of this court for such compensation in order to rectify any error he may have made. Leo v. Leo, Sup Ct, NY Co, opinion dated January 8, 2013, Index No: 1033435/2012. (R53-54) All other petitions were granted without comment. The proceedings affected 71 of the 550 cases pending at the time of retirement. (R 199) The other cases were resolved. Most were from Suffolk County where vigorous enforcement of the No-Fault law’s requirement of a “serious physical injury” (Insurance Law Sec 5102) resulted in Defendant’s verdicts or 12 summary judgment. (R 200, 208)8 The other cases resulted in nominal settlements for which the elder Leo waived payment. (R 201) The elder Mr. Leo explained: Q. Mr. Leo, approximately how many cases do these [nunc] pro tunc orders have? A. 71. Q. And that is not all of the cases you turned over to your son, when you sold and disposed of your practice; is that correct? A. That is correct…[T]he other [429] cases…all settled…for small amounts, or in some cases there were defendants verdicts, or defendant’s decisions, on motions for summary judgment. CHAIRPERSON MR. JULIANO: Those are the ones in Suffolk County. THE PETITIONER: Yes, absolutely. CHAIRPERSON Mr. JULIANO: …You have 71 that you indicated you had non pro tunc orders for, out of the total of what? THE PETITIONER: Out of about 500…[c]ases… *** THE PETITIONER: [The other 429 cases] have been either, as I say, either settled for a small amount, or they were defendant’s verdicts in some cases. And in some cases they were dismissed on a motion for summary judgment on the grounds that the plaintiffs had not as a matter of law sustained a serious injury, most of those being in Suffolk County. *** CHAIRPERSON MR. JULIANO: …When you say they were settled for a small amount, you didn’t get anything from those [and]…received you none of the compensation. THE PETITIONER: None of the compensation, that is correct. *** 8 see e.g. Toure v. Avis, 98 NY2d 345, 746 NYS2d 865, 774 NE2d 1197 (2002); Pommells v. Perez, 4 NY3d 566, 797 NYS2d 380, 830 NE2d 278 (2005). In consequence the ready daily calendar in Suffolk County has shrunk from several hundred cases per day to less than 50. 13 CHAIRPERSON MR. JULIANO: 429 cases, include small settlement, plus dismissals, summary judgment motions, whatever the case may be. Right? THE PETITIONER: Yes. CHAIRPERSON MR. JULIANO: What I’m saying, the small settlements, how many cases were they? THE PETITIONER: Approximately 300. *** CHAIRPERSON MR. JULIANO: You didn’t get anything from that? THE PETITIONER: No. CHAIRPERSON MR. JULIANO: Okay. By Ms. Moran: Q. [When] you discuss[ed] the payment to you on these small cases with your son…what resolution did you reach with respect to these cases? A. I have waived payments. And I will so indicate on the record that I have waived payments from any of those cases. *** CHAIRPERSON MR. JULIANO: For clarification, what is your definition of a small case? What are we talking about, less than $30,000. THE PETITIONER” Yes. I have no objection to using that one. I probably would have used 25. 25 or less, to me, is a small case. (R 198-203) Itemized excel charts for all cases, fees, referral fees, disbursements and notes were provided to the Sub-Committee. (R 23, 56) The Sub-Committee was gratified that the excel sheets satisfied all their questions. (R 23, 56) 14 Character References Mr. Leo Sr., presented accolades from the luminaries of the Suffolk Bar and Bench, a virtual Who’s Who in Suffolk County. The most glowing comes Hon John Copertinio, a former Justice of the Appellate Division: Second Department. (R 64) I have known Donald W. Leo for over 40 years. He appeared before me many times. In fact, he was trying a negligence action before me when I received the call from the Governor’s office that I had been appointed to the Appellate Division. I know him to be a highly competent attorney with high ethical standards and the utmost integrity. It is my impression that the legal community in Suffolk County held him in the same high regard. (R 64) The next most commendatory came off the pen of Justice Robert W. Doyle, retired from the Suffolk County Supreme Court and the Appellate Term, 9th & 10th Districts. (R 65) I have known Mr. Leo for over 20 years during which time he appeared before me as a County Court Judge and later as a Supreme Court Justice where I served in Suffolk County from 1977 until my retirement in 2011. At all times Mr. Leo represented his clients in a professional manner, was recognized by his colleagues as an individual of high moral standards and an ethical practitioner. (R 65) 15 Honorable Gary Weber former County Court Judge and Acting Surrogate Judge wrote: Since all of my varied experiences with Don Leo have been nothing but positive, I would recommend that he be re-instated without hesitation. (R 77) Pro Bono Activity Mr. Leo, Sr.’s, principal contribution to service of the bar and to the community came in the form of voluntary assumption, without hope of compensation, the guardianship of a youngster born with AIDS. (R 170) Both of the lad’s parents died. (R 171) The Leo family took the boy in their home for six months when the lad’s caretaker his grandmother fell ill, (R 170), and later when the grandmother died for an additional two years. (R 61) The young man is treated as a member of the Leo family. (R 60-61) The elder Leo waged war to see that the youngster obtained the proper medication which saved the boy’s life. Now 35, the young man is probably the oldest surviving pediatric AIDs patient. (R 60, 171) 16 Sub-Committee’s Report After careful review of the flood of enthusiastic recommendations and the effusive commendation from collection of public officials, judges, colleagues at the bar, a virtual social register of Suffolk County, the Subcommittee of Committee on Character and Fitness issued a nine (9) page report which enthusiastically “recommend[ed] reinstatement.” (R56) Conclusion: While it was clear to the subcommittee that the detailed business agreement did not comply with rules relating to…compensation to disciplined attorneys, it was equally clear to the subcommittee that Mr. Leo believed that all of his actions were proper and in accordance with a detailed business plan designed by [other] attorneys. Once he realized that the business plan was flawed, he promptly and thoroughly took action to correct the situation…He had to commute from Tennessee for much of his work. He, or those he paid had to comb through all of the records of approximately 500 matters and prepare and itemized Excel charts for case, fee, referral fee, disbursement,…(1). For each [case]…had to prepare motions…[which] itemize[ed]…disbursements…and attorneys’ fees… Once the [nunc pro tunc] was granted,…he…had to [prepare]…71 individual retainer statements… That is significant effort for someone who is 73, not living in New York, and who has not been practicing law for 10 years. While many disciplined attorneys say they would like to return to the practice of law, petitioner has shown, by his determined actions, that he is willing to work to regain this privilege. We believe that Donald William Leo, Sr. has the present character and fitness to practice law in New York. We recommend his reinstatement. (R 55-56) 17 Full Committee’s Determination Nonetheless, contrary to the sub-committee’s enthusiastic recommendation and the effusive commendation of public officials, judges, colleagues at the bar and former clients, the full Committee reported against reinstatement. The particular rub that perturbed the full committee involved the sale of Resignor’s practice to his son, prior to the resignation of Resignor from the bar. The Full Committee stated in part, that the Committee was recommending against reinstatement for two (2) reasons: (1) “your letter notifying your clients that you were retiring did not conform to the rules of the Appellate Division”: and (2) “your failure to seek court approval of disbursements and fees which you had received, until after the Subcommittee had noted this irregularity at the first hearing, did not evidence the present character required for reinstatement.” (R 14) Motion To Set Aside the Full Committee’s Report on Reinstatement With the Full Committee’s finding of an irregularity in the manner in which Mr. Leo left his practice in March 2004 directly at odds with the advice given by Mr. Leo’s attorney and the only precedent coming from a sister state which applies the same ABA Code, (In Re Lieber, 834 NW2d 200 [Minn 2013]), elder Leo moved to confirm the subcommittee’s’ report insofar as it recommended 18 reinstatement and disapprove the findings of the Full Committee. (Motion R 24-26; Memo 114-126) On the elder Leo’s motion to approve the sub-committee report’s recommendation of reinstatement and reject the Full Committee determination the elder Mr. Leo argued: 6. The Application…obtain[ed] Nunc Pro Tunc orders from judges in six [sic six applications in five different] counties. Nunc Pro Tunc is a device designed to correct precisely the inadvertent error presented in this matter… …[Any] error [was] made in good faith in reliance on the legal advice provided to him which caused no injury to any client…[t]here is precedent…for accepting Nun Pro Tunc orders and reinstating attorneys to practice. Matter of Andrew G. Maloney a disbarred Attorney, 91 AD3nd 780, [936 NYS2d 573] 2012 NY Slip Op 00375 [2d Dept 2012]. 7. The letters the Applicant sent to his clients conformed to the rules governing the sale of the practice. At the time when letters were sent, the applicant was not disbarred. Nothing in 22NYCRR Section 691.10 or any ethics opinion or case law provides that an attorney, closing or selling his practice in anticipation of a suspension or disbarment, must reveal that he may be suspended or disbarred in the near future in the client letters. Resignations are to be encouraged because they avoid unnecessary expenditures of the Court’s time and budgeted funds. The [Departmental Grievance Committee] often holds out the “carrot” of avoiding further embarrassment caused by waiting for the Court to suspend or disbar after a hearing and then having to disclose the sanction to the clients. (R 28) 19 Appellate Division Decision The Appellate Division rejected the elder Leo’s application and later denied re-argument without much by way of informative comment. On the elder Leo’s motion, the Court of Appeals granted Leave to Appeal to review the weighty issues presented. Synopsis of the Argument 1. The entire line of reasoning of the Full Committee rests upon the erroneous assumption that the structure of the sales agreement violated the rule concerning the sale of the practice. Beyond a requirement that a sales agreement be “reasonable,” the parties to it are free to devise any arrangement they wish to calculate the consideration for the purchase. Payment pursuant to a sales agreement are permissible. Rule 1.15(h); former DR 107[B]. Court approval was not required. Acceptance of the stated consideration for the purchase price of a law firm is not “compensation…for legal services rendered by another attorney” within the meaning of 22NYCRR Sec 691.10 2. From these fundamental flaws in reasoning, the Full Committee committed two serious errors of law (a) in assuming that a letter announcing a 20 retirement was subject to a specific court rule9, and (b) that the appellant was required to obtain orders approving the measure of consideration in the sales agreement. There is neither any Appellate Division rule on retirement letters nor an Appellate Division regulation governing the terms of a retirement or separation agreement from practice. The Committee proceeded on an error of law. 3. Even assuming the appellant were required to obtain approval of payment of consideration for the sale of a practice, appellant fully complied with such requirement in obtaining the nunc pro tunc orders. 4. The procedures invoked in this case violate due process protections, prohibiting departure from legal standards, findings contrary to the evidence and the lack of a written decision explaining the rationale for the court’s action. 5. The finding of the Full-Committee that the appellant “did not evidence the present character required for reinstatement” (R 14, 58) defies every principle of logic and common sense since it means that an appellant who 9 The Full Committee did not allude to a specific court rule. Presumably they were referring to 22 NYCRR 691.10 subd (c) and (d) which apply to notification by an attorney disbarred to present clients, not former ones. 21 followed the expert advice of an attorney specializing in the field, lacks the character and fitness to practice law. 6. There being no basis in record evidence of any moral dereliction, the petition ought to be granted. 22 QUESTIONS PRESENTED 1. Did the agreement between Donald Leo, Sr. and Donald Leo, Jr. selling the law practice of Leo, Sr. to Leo, Jr. and the elder Leo’s March 2004 retirement letter violate any specific provision of positive law, court rules, disciplinary rules or ethical considerations then in force? 2. Were the procedures which led to the denial of the motion for reinstatement which involved silent acquiescence by the Appellate Division in erroneous findings of the Full Character and Fitness Committee so wanting in essential fairness, US Constit Amend XIV that the determination of the Appellate Division cannot be said to rest on the record evidence? 23 POINT ONE: THE CONTRACT FOR THE SALE OF THE LEO FIRM FROM FATHER TO SON AND THE PRE- DISBARMENT NOTIFICATION TO EXISTING CLIENTS MADE UNDER ADVICE OF COUNSEL VIOLATED NEITHER THE DISCIPINARY RULES NOR THE ETHICAL CONSIDERATIONS IN FORCE NOR ANY COURT RULES. The crux of the entire case be boiled down to critical testimony at hearing: SUBCOMMITTEE MEMBER BESUNDER: …[Y]ou reviewed 691.10 of the Appellate Division Second Department…I want to address two things in there. One is the compensation issue. Then you’ll see below that, I sort of highlighted in yellow…Having read Rule 691.10 on compensation, would you agree that in your acceptance of fees, that you are not in compliance with the rule for whatever reason. MR. LEO: I was not accepting fees. I was accepting a purchase price from my son. (R 181-186) The elder Leo correctly stated that the consideration for the purchase price of a law firm is not “ ‘compensation…for legal services rendered by another attorney,” (22 NYCRR Sec 691.10) for which judicial approval is required. The sub-committee’s finding to the contrary that the Leo’s business plan was “flawed” was in error. That finding absorbed into the Full Committee’s determination and the Appellate Court’s ruling is in error. 24 There is no rule regulating the manner in which consideration for the purchase of a law firm can be determined. Parties are free to come to their own terms. All that follows the Full-Committee’s determination and the Appellate Court’s rubber stamping of it without much comment rests on a fundamental misreading of the law. Freedom of contract may have become a dirty word to those inclined to exercise overbearing, intensive, intrusive control over all aspects of life, but the “right…to make and enforce [private] contracts” was first extended in 1866 to “all persons” in (42 USC 1981) the wake of the US Civil War and the abolition of slavery (US Constit XIIIth Amendment). Thus it is said that it is both fundamental and “commonplace” to observe “that all adult persons, suffering from no disability, have complete freedom in structuring their contracts,” (Mandel v. Liebman, 303 NY 88, 100 NE2d 149 [1951]; Morris v. Snappy, 84 NY2d 21, 614 NYS2d 362, 637 NE2d 253 [1994]; JMD Holding v. Congress Fin, 4 NY3d 373, 795 NYS2d 502, 828 NE2d 604 [2005]) and as they have in the conduct of other aspects of their personal affairs. This, fundamental commonly accepted axiom as the 1866 Congress correctly saw it, is the very essence of personal liberty, autonomy, and freedom. How the parties contracting calculate the consideration “about fraud or unconscionability is not a proper subject of judicial scrutiny.” Apfel v. Prudential- 25 Bache, 81 NY2d 470, 600 NYS2d 433, 616 NE2d 1095 (1993). “The law of contracts would have to be substantially rewritten” (In Re Yes Entertainment, 336 BR 203 [Bank Ct. D Del 2006] if “a contract” [were not] construed [with] the apparent purpose…the parties [had in mind]. Hooper v. AGS Competitors, 74 NY2d 487, 549 NYS2d 365, 548 NE2d 903 (1989). Just as certain as “all is yellow to the jaundiced eye,” (Alexander Pope, Essay on Criticism [1711]) it is easy for a micro manager straining to see evil lurking in every written word to find a cause to fault parties to a contract for some imagined cause. The wisdom of contract law argued against such extravagance, “although ‘words might ‘seem to admit of a larger sense, yet they should be restrained to the particular occasion and the particular object which the parties had in mind.” Hooper v. AGS Computers, supra. Conceivably the Rules could have required, but did not mandate, prior judicial or administrative approval of contracts to sell a law firm. There are indeed certain species of contracts for which judicial approval is specifically required. See Religious Corporation Law Sec 12 [sale or mortgage of church property]; Not-For- Profit-Corporation-Law Section 511 [disposal of all or substantially all the assets of a non-profit corporation]. But with the sale of a law firm, the legislature, the judiciary and the bar associations have left buyer and seller to determine the structure of the deal at liberty. Indeed the current Rules of Professional Conduct 26 only require that the terms of a sale of a practice be “reasonabl[e].” Rules of Professional Conduct R 1.17.10 Now, the Leo contract was prepared by attorneys in a firm staffed by experts in the field, an office deemed by the local bar in Suffolk County to possess the penultimate knowledge and experience not only in commercial law but also in professional ethics. From a review of the contract and bill of sale, it would appear that the primary focus in effecting a sale of the Leo practice from father to son was the New York state bulk sales tax. Tax Law Sec 1105. (R 236) The firm which drafted the agreement believed that since the elder Leo was not yet disbarred in March 2004, the practice could be sold in late March 2004 and notice in March 2004 to the existing clients need only announce the elder Leo’s retirement. See In Re Lieber, 834 NW2d 200 (Minn 2013). The sound judgment of the firm representing the elder Leo was that the elder Leo had no clients in June 2004 to notify when the resignation was finally accepted and the disbarment ordered. The elder Mr. Leo scrupulously followed advice of counsel as he would be expected to.11 Indeed consistent with the advice of the counsel, the former ethical 10 A requirement of reasonableness might be a fair implication of former DR 2-111. 11 A major function of an attorney at law is advice and counsel. It is the responsibility of the attorney to render advice. ABA Model Rules of Professional Conduct: Preamble A LAWYER'S RESPONSIBILITIES Sec 1. “The client looks 27 considerations and disciplinary rules as the current rules encourage sales of practices to assure continuity of representation, (Former DR 2-110; Rules of Professional Conduct 1.17[a]), and avoid the unnecessary interruption in the flow of the work of the courts of law. In search of the “reasonabl[e]” standard of the rules, the draftsman of the Leo agreement, in the structuring the consideration for the sale, responsibly attempted to balance the interest of both Leos. The elder Leo believed the practice to have been worth a cool million and had extended a half of a million dollars to fund the disbursement of those cases, pending on the date of sale. The younger Leo’s risk was that the cases pending might turn out to be worthless and he might be purchasing recyclable paper that the town would eventually have to cart away to churn into McDonald’s bags. The compromise struck between competing objectives of the parties to the contract was a lump sum plus a percentage of certain cases. to the attorney for expertise, education, sound judgment, protection, advocacy and representation.” Were that not so, a case could be made for abolishing the legal profession in its entirety. Id http://www.americanbar.org/content/dam/aba/migrated/cpr/mrpc/mcpr.authcheckdam.pdf These expectations can be achieved only if the client fulfills the cardinal responsibility: cooperation.” NYSBA, Statement of Client's Responsibilities. https://www.nysba.org/WorkArea/DownloadAsset.aspx?id=27829 It is the primary duty of the client to pay heed to the wisdom conferred. One who "`acts in reasonable reliance on the advice of counsel` generally cannot be said to have acted in bad faith.” Sands, Taylor & Wood Co. v. Quaker Oats Co., 978 F.2d 947,962 (7th Cir.1992), cert. denied, 507 U.S. 1042, 113 S.Ct. 1879, 123 L.Ed.2d 497(1993); Cuisinarts, Inc. v. Robot-Coupe Int'l Corp., 580 F.Supp. 634, 637-39 (S.D.N.Y.1984). 28 Indeed there is no other way to fairly evaluate the value of a firm engaged in personal injury practice. The actual value of the firm is entirely speculative, ranging from the sum any seller would want to the cost and burden to the buyer of carting away trash. Thus, as the Leo’s attorney advised the Leo’s, this is the manner in which a contract of sale would have to be drawn. The objective of the draftsman of the agreement was to set the consideration for the sale of a practice by determining the value of its inventory of pending cases, many of which ultimately did turn out to be valueless or nearly so. This was not a referral agreement to provide “compensation” to the elder Leo as that term is used in 22 NYCRR 691.10. The Full-Character and Fitness Committee which resolved against re- admission and even the subcommittee which reported in the elder Leo’s favor and by implication the Appellate Division tacitly, though it typically remained as inscrutable as the sphinx, apparently agreed that the business plan was “flawed” and that the law countermanded both what the draftsman devised and what two Leo’s had accepted as “reasonable” upon advice of counsel. The Committee postulated that it was “clear” that 22 NYCRR Sec 691.10 was to the contrary of the sagacious advice of the expert appellant consulted. That provision prohibits a former attorney from “shar[ing] in any fee for legal services performed by another attorney.” Rule 691.10 addresses an entirely different 29 problem: referral arrangements where a former attorney might profit from the labor of another, the rule does not speak to a sale of a law practice. It does not contemplate the sale of an entire practice in which the files were a part of the capital property. Interestingly enough the new Rules of Professional Conduct enacted as part 1200 of NYCRR in Rule 1.17 sanction any reasonable sale “notwithstanding any other provision of these Rules.” (emphasis supplied, see also former DR 2-111, 2-107[b]) Indeed while “compensation” and “consideration” are somewhat related words, they are not synonyms. Compensation can be defined as: payment for work performed, by salary, wages, commission or otherwise. It can include giving goods rather than money. http://dictionary.law.com/Default.aspx?selected=257#ixzz3nLg OL4jw “Consideration” in a contractual setting while involving something of value is not compensation: Something with monetary value, voluntarily exchanged for an act, benefit, forbearance, interest, promise, right, or goods or services. In banking, the loan-amount is a consideration, in exchange for the borrower's promise to repay the principal and to pay interest and other charges. In insurance, the insurance company's offer to make a loss good is a consideration in exchange for payment of premium. Essential element of all enforceable commercial-contracts, it does not have to be 'adequate' or equal in value to the exchanged item but must be legal (not in violation of any law). Any commercial contract without a valid (valuable and legal) consideration is invalid and is called 'nudum pactum' (Latin for, naked contract) governed 30 by the legal maxim 'ex nudo pacto non oritur actio' (Latin for, a right of action does not arise from a naked contract). See also good consideration, and valuable consideration. http://www.businessdictionary.com/definition/consideration.ht ml#ixzz3nLhIMDlY The authors of Rule 691.10 presumably know and understood both terms and the difference between them. It is not for the adjudicatory process to override the legal distinction to make a valued business plan prepared by experts in the field “flawed.” As a body exercising administrative powers over re-admission, neither the Full nor Sub-Committee may re-write the regulations and bend it to a new objective. “Administrative officers acting solely on their own ideas of sound public policy, however excellent their ideas maybe” lack the capacity to rewrite the law, (Picone v. Commissioner, 241 NY 157, 162, 149 NE 336, 338 [1925]) “no matter how progressive…[their] views and values.” Bridgman v. Kern, 257 AD 420, 425, 13 NYS2d 249, 254 [1st Dept, 1939 ]. Existing regulations should be enforced as written (Toomey v. NYS Legislature, 2 NY2d 446, 449, 161 NYS2d 81, 141 NE2d 584 [1957]), not twisted to ends not within the confines of the existing rules. Harmon v. Republic Aviation, 298 NY 285, 82 NE2d 785, 786 [1948]. It would be a violation of due process (US Constit Amend XIV) to add a flourish to the 31 existing rules that does not appear directly in the regulation, without an explanation for the change and an application prospectively. Of course the regulations are not written on stone tablets, but are subject to revision (St. Admin Law Sec 202; Judiciary Law Secs 70, 460), through the appropriate procedure. In accordance with the concept of due notice, the conduct sought to be regulated ought to be spelled out. When legislating by the decision making process, expanding the existing rule, due regard for the task of the ultimate reviewing court which must determine if the policy announced is in consonance with the existing regulation, for the rights of litigants who have relied upon the black letter of the existing regulation as they stood and for the guidance of future parties require the committees to explain “the[ir] reason[ing]” Matter of Christy (Comm’r of Labor), 90 AD3d 1436, 938 NYS2d 356 (3d Dept 2001); Matter of Fields (Roberts), 66 NY2d 516, 498 NYS2d 111, 488 NE2d 1223 (1985) History records that it is in the nature of persons and entities holding the almighty hand of power to stretch the limits of their authority far beyond its intended purview like a raging river over flowing its banks at flood tide. It is the office of the court to hold back the flood and erect a levy to contain the rising swells and channel the torrents off in the direction of their proper ends and objectives. Matter of Bologno v. O’Connell, 7 NY2d 155, 196 NYS2d 90, 164 NE2d 389 (1959). 32 By the same token, the Full Committee’s finding that the elder Leo’s retirement letter had not satisfied Appellate Division rules is simply another attempt to overthrow the limits of the Committee’s authority. The Full Committee found the letter to have violated unstated “Appellate Division rules” in an unexplained way. With regard to litigated matters 22 NYCRR 691.10 only requires: (d) Notice to clients involved in litigation. (1) A disbarred, suspended or resigned attorney shall promptly notify, by registered or certified mail, return receipt requested, each of his clients who is involved in litigated matters or administrative proceedings, and the attorney or attorneys for each adverse pary in such matter or proceeding, of his disbarment, suspension or resignation and consequent inability to act as an attorney after the effective date of his disbarment, suspension or resignation. The notice to be given to the client shall advise of the prompt substitution of another attorney or attorneys in his place. There is no provision which requires attorneys disbarred to give notice to former clients. The testimony in this case is clear that at the time of actual disbarment, the elder Leo had no clients. Invoking court rules, the Full Committee presumably referred to 22 NYCRR 691.10 (c), (d). The Appellate Division has no rule regarding notice to clients of a retirement. cf In Re Lieber, supra. 33 SUBCOMMITTEE MEMBER BESUNDER: …[Rule] 691.10 of the Appellate Division Second Department…gives instructions as to what must be contained in the letter that you send to clients [following disbarment]. *** SUBCOMMITTEE MEMBER BESUNDER: Now, the letter that you wrote [on March 30, 2004] did not contain that language [of 22 NYCRR 610.10], did it? MR. LEO: It wasn’t in it...I didn’t say anything [in the March 30, 2004 letter] about being suspended or disbarred because it hadn’t happened at this point in time…[On March 30, 2004], I was not suspended, disbarred or anything else… SUBCOMMITTEE MEMBER BESUNDER: So you believe that you sent this [March 30, 2004] letter prior to the time that you were disbarred; correct? MR. LEO: Correct. SUBCOMMITTEE MEMBER BESUNDER: After you were disbarred, did you ever send another letter which contained the language set forth in [Rule 691.10]?... MR. LEO: No. I was told [by counsel] that I didn’t have to [advise former clients]. *** SUBCOMMITTEE MEMBER BESUNDER: Would you agree that having read the rule [22 NYCRR 610.11] that you were not in compliance with the rule with regard to informing your clients that you were disbarred? MS. MORAN: I think that the question isn’t proper because at the time he wrote the [retirement] letter [on March 30, 2004], he wasn’t disbarred. SUBCOMMITTEE MEMBER BESUNDER: Okay. Is that basically your position? MR. LEO: Yes. (R 181-186) Indeed although 22 NYCRR Section 691.10 (c), (d) does not apply to Retirements, the major purpose of that rule has been served by the Leo agreement. 34 A cardinal purpose of 22 NYCRR 691.10(d)(1),(2) is ensure continuity of representation.12 The Leo letter written months before his disbarment served to accomplish the primary purpose of 22 NYCRR 691.10(d)(1),(2) to insure continuity of representation. At disbarment, the elder Leo had no clients to notify. Equity does not require parties to perform vain, futile and useless acts. McGoldrick v. Follette, 199 Misc 492, 98 NYS2d 893 (Sup Ct, 1950); Rappaport v. Raylen Realty Corp., 204 Misc 729, 124 NYS2d 331 (Sup Ct, 1953). Indeed acts to be required of any party, an act must “accomplish some proper purpose.” (Pennington v. Ziman, 13 AD2d 769, 216 NYS2d 1 [1st Dept, 1961]) other than satisfying the vanity of the authority which made the order. The finding that the notice was contrary to Appellate Division rules was as erroneous as the assumption that the Leo contract was illegal or “flawed”. Indeed, contrary to the Full-Committee, reading Rule 1.17 (formerly DR 2- 111[h]) which permits any reasonable terms in a sale of a practice with Rule 1.15(h) (formerly DR 107[b]), authorizes, “payment[s] to a lawyer formerly 12 (d) Notice to clients involved in litigation. (1) A disbarred, suspended or resigned attorney shall promptly notify…clients…of his disbarment, suspension or resignation and consequent inability to act as an attorney after the effective date of his disbarment, suspension or resignation. The notice to be given to the client shall advise of the prompt substitution of another attorney or attorneys in his place. (2) In the even the client does not obtain substitute counsel….it shall be the responsibility of the disbarred, suspended or resigned attorney to move pro se in the court…for leave to withdraw from the action or proceeding. 22NYCRR 691.10(D) 35 associated in a law firm pursuant to separation or retirement agreement.” If anything is clear, it is that the draftsman of the agreement was correct in advice to the Leos and that both learned Committees fell into gross error which leave the determination of the Full Committee implicitly adopted by the Appellate Division resting on a cardinal error of law. Speaking to the validity of a fee splitting arrangement under California’s ethical code, the California courts observed: The power… To declare a contract…in contradiction of sound public policy is a very delicate and undefined power…exerc[ised] only in cases free from doubt [and]…[not] on doubtful and uncertain grounds…the burden is on the [party which raises public policy] to show that [the contract] would be in violation of the settled public policy of this state or injurious to the morals of its people. Moran v. Harris, 131 Cal App 3d 913, 919-920, 182 Cal Rptr 519, 28 ALR 4th 655 (1982). Indeed from a “public policy” point of view the elder Leo’s experts correctly gauged the public policy of the existing disciplinary rules and considerations as one to assure continuity of representation. The alternative the Full-Committee saw, notifying former clients of a disbarment, might have been disruptive of the end of assuring continuity of 36 representation and disruptive of the relationship, former clients had established with the younger Leo or another. An unnecessary communication with former clients now represented by the new attorney, would constitute an unwelcome and unauthorized communication with another lawyer’s clients. DR 7-104, now Rule 4.2(a) 37 POINT TWO: DUE PROCESS OF LAW REQUIRES, PROCEDURAL REGULARITY: ADHERENCE TO EXISTING RULES, A DETERMINATION ON THE EVIDENCE AND A WRITTEN DECISION. THE APPELLATE DIVISION SHOULD HAVE SET FORTH ITS RATIONALE SO THAT WE AVOID THE INSTANT ANONOMLY OF PUNISHING APPLICANT FOR INNOCENTLY FOLLOWING COUNSEL’S ADVICE. Today we assume that a due process requirement should attach to every aspect of decision making in government where individual rights are affected. Hecht v. Monaghan, 307 NY 461, 121 NE2d 421 (1954). The road to due process in cases involving the licensing of lawyers has taken a twisted path whose contours have been shaped by the giants of the bar and bench. The trail begins prior to the Civil War with Chief Justice Roger B. Taney in Ex Parte Secombe (60 US 9, 19 HOW 9, 15 L.Ed 565 [1856]). The ante-bellum ruling in Secombe arises in a certain cultural setting and mind frame. In Taney’s time, it was assumed that law, as a higher calling to excellence and erudition, easily distinguishable from the dusty, dingy world of merchants, tradesman, and street vendors, should indeed be entirely self-governing, making and enforcing its own rules according to standards it set. See Powell, Professional Divestiture: The Cession of Responsibility for Law Discipline, 31 38 ABA Foundation Research Journal 31 (1986); Devlin and Hifferman, The End(s) of Self-Regulation, 45 ALTRA LRev 169 (2008) In the spirt of that view, Chief Justice Taney ruled that a court had virtually absolute power to make and remove its officers. A court, Taney wrote, if authorized by legislation, could remove an attorney without a statement of charges, without notice and without an opportunity for defence or explanation. What Justice Taney describes is a fraternity. A black balled lawyer has no rights but that a qualified lawyer should not be black balled to promote private piques and grievances Justice Taney however handed down a homily which, although he might have described it as a mere idealized aspiration rather than a rule of law, has become the cornerstone of due process in lawyer discipline cases: The power, however, is not an arbitrary and despotic one, to be exercised at the pleasure of the court, or from passion, prejudice, or personal hostility; but it is the duty of the court to exercise and regulate it by a sound and just judicial discretion, whereby the rights and independence of the bar may be as scrupulously guarded and maintained by the court, as the rights and dignity of the court itself. Exparte Secombe, supra. Of course Justice Taney was speaking to a particular cultural milieu which protected the rights and privileges of a small educated elite interconnected by 39 blood and marriage. He himself was the brother in law of Francis Scott Key, the author of one of two ballads then vying for prominence as the National Anthem. But in 1861 brother fought brother and in its wake reconstructed Rebels who had been demoted from The Elect, sought to resume what they regarded as their proper place. In readmitting a former Confederate Congressman and Senator, Justice Fields in Ex Parte Garland, (71 US 333, 18 L.Ed 366 [1866]), borrowing from Judge Samuel L. Selden’s holding in Matter of Cooper (22 NY 67 [1860]) transformed Justice Taney’s vision of a fraternity autonomously operating on platitudes which were not translatable into any right capable of enforcement: The attorney and counsellor being, by the solemn judicial act of the court, clothed with his office, does not hold it as a matter of grace and favor. The right which it confers upon him to appear for suitors, and to argue causes, is something more than a mere indulgence, revocable at the pleasure of the court, or at the command of the legislature. It is a right of which he can only be deprived by the judgment of the court, for moral or professional delinquency. Ex Parte Garland, supra The New York court, in Cooper whose reasoning Justice Field generously borrowed had declared: In regard to attorneys, the [New York] Constitution confers the absolute right of admission upon every one possessing the requisite qualifications. The court is called upon to determine as to the existence of this right. It being ascertained that the 40 applicant possesses the requisite qualifications, his admission follows as a legal necessity. It is certainly clear, as a general rule, that whenever the law confers a right, and authorizes an application to a court of justice to enforce that right, the proceedings upon such an application are to be regarded as of a judicial nature; and I am unable to perceive any just ground upon which the present case can be considered as an exception. *** Whenever an applicant is found to possess the requisite qualifications, the Constitution, by its own inherent energy appoints, i.e., it gives to the applicant an absolute title to the office, which is equivalent to an appointment. Matter of Cooper, supra. Moving from Reconstruction to the twilight of the gilted age when Frederick Winslow Taylor’s Principles of Scientific Management (1911) took hold, Chief Judge Benjamin Cardozo following Judge Selden in Cooper acknowledged that control over attorneys was vested in the Courts but that function was not a necessary part of the judicial purview. Cardozo explained in People ex rel. Karlin v. Culkin, (248 N. Y. 465, 162 N. E. 487 [1928] ) that the essential nature and function of the Appellate Division’s “power and control over attorneys” in administering both discipline of and admission to the bar was “regulat[ory],” (248 NY supra at 472) rather than purely judicial. The court acts in a sense in a quasi-legislative fashion insomuch as it makes the rules; it acts quasi-executively as it investigates and prefers the charges and quasi administratively as it determines in the appropriate case whether admission or re-admission would be justified or whether a sanction should be 41 imposed. (248 NY supra at 478) Perhaps, in this light, the function of the Appellate Division with relation to its control over the bar could be best described as managerial more like the work of an administrative agency, than purely judicial like a court neutrally determining the cases brought before it by wholly autonomous parties. From Cardozo’s place in the twilight of the gilted era, we pass to the dawn of the civil rights epoch in which attention was focused upon the requirement of responsible and reasonable governmental action in consonance with due process rights to be heard, to conformance with legal requirements of administrative action and to evidentiary support for each and every factual finding of one agency. Hecht v. Monaghan, 307 NY 461, 121 NE2d 421(1954) cab driver’s license; Matter of Bologno v. O’Connell, 7 NY2d 155, 196 NYS2d 90, 164 NE2d 389 (1959) junk dealers; Bridgeman v. Kern, 257 AD 420, 425, 13 NYS2d249, 254 [1st Dept 1939] affd per curium 282 NY 375, 380, 26 NE2d 297 (1940) – civil service exams. What constitutional formulas would be required by due process (Amend XIV) of agencies, in determining such earth shattering matters as permits for junk salesman licenses, were late in coming, even in this state, to come to protect the advocates who defend the rights protected by that constitution. See Matter of Citrin 42 94 NY2d 459, 727 NE2d 569, 706 NYS2d 72 (2000).13 Justice Arthur Goldberg critically commented on this anomaly concurring in Wilner v. Committee, (373 US 96, 88 SCt 1175, 10 LE2d 224 [1963]), “certainly lawyers and courts should be particularly sensitive and have a special obligation to respect the demands of due process.” The due process revolution in analyzing state power to regulate attorneys came from the top when Justice Hugo Black declared in Schware v. Board of Bar Examiners, (353 US 232, 1 LE2d 796, 77 SCt 752 [1957]): A State cannot exclude a person from the practice of law…in a manner or for reasons that contravene the Due Process or Equal Protection… *** A State can require high standards of qualification,…but any qualification must have a rational connection with the applicant's fitness or capacity to practice law…Obviously an applicant could not be excluded merely because he was a Republican or a Negro or a member of a particular church. Even in applying permissible standards, officers of a State cannot exclude an applicant when there 13 In Matter of Citrin, 94 N.Y. 2nd 459, 706 N.Y.S. 2nd 72, 727 N.E. 2nd 569, this Court held that an applicant for reinstatement to the New York State Bar has a right to review any report regarding reinstatement prepared by the Committee of Character and Fitness. Commenting upon Citrin in an article published originally on October 1, 2000, in the New York Professional Responsibility Report, and now published on line in the New York Legal Ethics Reporter, Professor Hal R. Lieberman, observed: “Notwithstanding the Court’s decidedly narrow holding in Citrin, it performed a valuable service to the Bar and to New York’s system of attorney regulation. As in several prior rulings involving procedural rights in the disciplinary context, the Court of Appeals confirmed and reinforced its traditional emphasis on “due process”. Without elevating the Citrin case to constitutional issue status, the Court’s message was plain. Disbarred or suspended lawyers have a cognizable “interest” in regaining their law licenses. Therefore, the lower courts in New York which administer our admissions and disciplinary systems must treat applicants for reinstatement fairly and with careful regard to their procedural rights.” http://www.newyorklegalethics.com/citrin-case-do-disbarred-lawyers-have-constitutional-rights/ 43 is no basis for their finding that he fails to meet these standards, or when their action is invidiously discriminatory. Indeed, the Schware court confidently declared that there should be a “basis for their finding that [Resignor] fail[ed] to meet these standards.” Schware v. Board of Bar Examiners, (supra). We move on to Willner (supra) where Justice Goldberg concurring cried out for: “an orderly sorting out of the issues and an articulated and constitutionally grounded decision on the merits of the petitioner’s claims to admission.” Willner v. Committee, supra, Goldberg concurring. At the same time, the profession of law was undergoing a transformation in its relationship to society. It was no longer regarded as a special calling distinct from and above the rough and tumble world of tradesmen and merchants. Bates v. State Bar, 433 US 350, 97 SCt 2691, 53 Led2d 810 (1977) – lawyer advertising; Goldfarb v. Virginia State Bar, 421 US 773, 95 SCt 2004, 44 LEd2d 572 (1975) – fee schedule. Law was democratized became becoming more diverse and multicultural open to women, foreigners and minorities. In Re Griffiths, 413 US 717, 93 S.Ct 2851, 37 Led2d 910 (1973). Even the lawyer’s prerogative to exercise absolute control over the course of legal proceedings independent of the client (People v. Antommarchi, 80 NY2d 247, 590 NYS2d 33, 604 NE2d 95 [1992]) and to exercise 44 a monopoly over the right to conduct judicial proceedings has been drawn into question. (Matter of Sharon B [Anon] 72 NY2d 394, 534 NYS2d 124, 530 NE2d 832 [1988]; Family Court; Goldsmith v. Board of Tax Appeals, 270 US 117, 46 SCT 215, 70 L.Ed 494 [1926], Tax Court, quoted in Willner v. Committee; supra) have been challenged. In 1963, the New York High Court confidently referred to the willing bar accepting assigned counsel case as “men of ability and integrity.” People v. Brabson, 9 NY2d 173, 212 NYS2d 401, 173 NE2d 277 (1963). Two decades later the court referred to that coterie as “a program for proving legal assistance.” People v. Medina, 44 NY2d 199, 375 NE2d 768, 404 NYS2d 588 (1977). The independence of the bar in disciplining its own was shattered when professional Departmental Grievance Committees superseded their Bar Association counterparts first in the First and Second Departments in 1975 and much later in the other departments. What has emerged is a larger, more diverse, bar, subject not merely by their peers but heavily regulated by organized professional governmental bodies. In this context, we must conclude that if a lawyer by virtue of that status is no greater than a commonplace merchant or tradesman, then his or her rights should be no less: a determination based on evidence in consonance with the law embodied in a written decision. 45 The problem here is precisely that there is no clue as at the Appellate Division’s findings beyond the conclusory assessment that appellant, notwithstanding the firm recommendation of the sub-committee and the enthusiastic endorsement of judges, lawyers and even a paralegal, has not proven good moral character. That conclusion expressing dissatisfaction with the evidence of good moral character, overriding the opinion of one of the court’s former members Judge Copertino, rests upon the Full-Committee’s a false assumption that the Leo agreement was flawed and that notice of disbarment to former clients was required. The appellate court’s conclusory squib tells little of what a written decision is designed to provide, a basis for reviewing court to determine “whether the stated reason…is in accord with th[e existing] rules.” Matter of Scherbyn v. Boces, 77 NY2d 753, 570 NYS2d 474, 573 NE2d 562 (1991). This seems to be the general state of practice unique to the Second Department.14 The Appellate Division’s determination hence lacks a rational factual “basis for their finding that [Resignor] fail[ed] to meet these standards.” Schware v. Board of Bar Examiners, (supra). 14 The other Department routinely without difficulty sets forth the facts it relies on (See eg Matter of Levin, 261 AD. 2d 74, 697 NYS.2d 52, [1999]; Matter of Siberman, 62 AD.3d 61, 874 N.Y.S. 2d 466, [2009]) as does its sister court in Albany (see eg Matter of Feldman, 252 AD.2d 733, 675 NYS 2d 675, [3d dept 1999] Matter of Hoffman, 254 AD2d 518, 678 NYS.2d 537, [3d Dept, 1998]; Matter of Silverstan, 81 AD.3d 1244, 916 NYS.2d 856, [3d Dept, 2011) and the Fourth Department. See eg Matter of Argentieri, 287 AD.2d 193, 732 N.Y.S. 2d 511,(,2001). 46 But the failure to render an explanation of the reasoning process does more violence than merely creating opportunities for reliance upon findings of the Committee at variance with the facts, it can create islets of authority breeding inconsistencies and anomalies in the application of the rules. Disparate treatment in different departments has been subjected to searing criticism from Chief Judge Lippman in his 2015 State of the Judiciary Speech. http://www.nycourts.gov/ctapps/news/SOJ-2015.pdf . In consequence, inconsistences abound such that one cannot say that there is any glimmer of a consistent statewide policy. A punishment cannot be greater or less on one side of the East River or for that matter up the Hudson consistent with the concept of equal protection of the law.15 US Constit Amend XIV. The search 15 In similar dealing with escrow mismanagement, the First Department has imposed suspension rather than draconian sanction of removal which the Second Department generally imposes. Surveying its cases, the First Department wrote in Matter of Kulcsar (98 A.D.3d 161, 947 N.Y.S.2d 67 [1st Dept. 2012]): Under the circumstances, such [suspension] is in accord with this Court's precedent (see Matter of Racer, 56 AD3d 125, 866 NYS 2d 55 [2008] [respondent suspended for four years for, inter alia, a pervasive practice of failing to keep required escrow account records and failing to cooperate with DDC investigation]; Matter of Levy, 307 AD2d 47, 760 NYS 2d 455 [2003] [three- year suspension imposed for misconduct that involved, inter alia, failure to keep required account records and a pervasive commingling of funds]; Matter of Tepper, 286 AD2d 79, 730 N.Y.S.2d 498 [2001] [two-year suspension imposed for misconduct involving, inter alia, inadequate bookkeeping in connection with an escrow account, commingling of personal and client funds, and nonvenal invasion of client funds]; Matter of Cohen, 264 AD2d 94, 704 N.Y.S.2d 547 [2000] [five-year suspension imposed for extensive escrow related misconduct that involved, inter alia, failure to keep proper records]). Compare the approach of the Second Department In determining the appropriate measure of discipline to impose, the respondent asks th Court to consider, inter alia, that the Special Referee made no finding of venality, characterized the respondent’s misconduct as “mistakes,” and was impressed with the respondent’s Bar and community service activities {which are numerous). The respondent also asks the Court to consider that his clients were 47 for uniformity in state law may never be so perfect as to attain mathematical parity between different regions of the state, but to permit a department to opt out and run itself on its own momentum erecting different standards cannot be tolerated. Uniformity gives a greater good than merely “sweeping away local peculiarities thus [far] sanctioned” (People ex rel Fleming v. Dalton, 158 NY 175, 52 NE 1113 [1889]) by lassitude. Uniformity champions a degree of consistency necessary to a just legal system. “[T]o undermine uniformity…compromises predictability” (Ling Ling Yung v. Nassau County, 77 NY2d 568, 571 NE2d 669, 569 NY2d 361 [1992]) and destroys any possibility of “standardiz[ing]…practice.” Ins Co, V. ABB Power, 91 NY2d 180, 690 NE2d 1249, 668 NYS2d 143 (1997). Witness the admission to practice granted by the First Department in Matter of Wiesner (94 A.D.3d 167, 943 N.Y.S.2d 410 [2012]) to an individual who had run a sophisticated drug distribution scheme which netted $20,000 per day through the operation of several "insomnia clinics," ostensibly for sleep disorders; generous payoffs at $3000 a clip to medical doctors provided script for “patients.” After apprehension by federal authorities, he allegedly high on methamphetamines fired a weapon at his girlfriend. Considering his deep remorse and efforts to clean not harmed, that he was contrite, and that he expressed remorse for his misconduct. *** The respondent is guilty of serious professional misconduct that warrants his disbarment. Matter of Maloney, 282 AD2d 112, 723 NYS2d 674 [2nd Dept, 2001] readmitted 91 AD3d 780, 936 NYS2d 573, (2nd Dept, 2012) 48 himself up, the First Department admitted the applicant as a person of sterling character. Here admission is denied to a former attorney who did acknowledge his mismanagement of his escrow account but who caused no loss and hurt no one and whose actions under the advice of counsel, expert in the field, have been held in the balance and weighed against him as evidence of poor moral character. Noting the elegant but shadowy gloss of the applicable criterion of “good moral character,” said Justice Felix Frankfurter concurring in Schware, in proceedings leading to exclusion from admission, the candidate is entitled to “a fair and [un]biased” determination. Refusal to allow a man to qualify himself for the profession on a wholly arbitrary standard or on a consideration that offends the dictates of reason offends the Due Process Clause. Such is the case here. Schware v. Board of Bar Examiners, supra, Frankfurter, J, concurring. If the purpose of the appeal (Jud Law Sec 90, sub 4) is to determine whether there is an evidentiary support for the conclusions attained, we see none. Indeed what we see from the committees is a twisting of the terms used in Rule 691.10 to make conduct lawful done under the advice of counsel “flawed.” Such stretching of the term “compensation” used by Rule 691.10 would not have survived judicial 49 review if the application were one for a junk dealer’s license. It should not survive if a lawyer applies to reinstate his license. If the purpose of the appeal designed by Section 90 is to test whether a determination is arbitrary or devoid of reason, we see something that is utterly irrational. Essentially, beyond the tortured construction given the regulation (Rule 691.10), the Full Committee found that good faith compliance with counsel’s advice constituted a moral failure which showed the Appellant had not attained the good moral character required of attorneys, a criterion for admission. Such is an “extraordinary result” to find moral indifference on the basis of following “advice of counsel” strictly to the letter “in good faith.” Gordon v. Nationwide, 30 NY2d 427, 334 NYS2d 601, 285 NE2d 849 (1972). The law in every aspect recommends encourages “good faith…relian[ce] on the advice of counsel.” WWW Pharmaceutical v. Gillette, 984 F2d 567 (2d Cir 1983). The Full Committee saw moral dereliction in the elder Leo’s action in obtaining the Nunc Pro Tunc orders the subcommittee requested. Even assuming that the Full Committee had not so effectively misconstrued the operative term “compensation” of Rule 691.10, the elder Leo’s assumption of and his son’s cooperation in the herculean task of petitioning five of the 62 County Supreme Courts for Nunc Pro Orders is no evidence of a failing of moral character. 50 Chief Judge Cardozo is often quoted for the beautiful language he used when he declared hindsight to be an inappropriate measure of conduct. “A wisdom developed after an event and having it consequences as a source is a standard no man should be judged by.” Blaustein v. Pan American & Transport Co., 293 NY 281, 300, 56 NE2d 705, 713-714 (1944) quoting Costello v. Costello, 209 NY 252, 262, 103 NE 148, (1913) Justice Byron White might have said of such extravagance as Cardozo described as: I would hold that a federal court may not deprive an attorney of the opportunity to practice his profession on the basis of a determination after the fact that conduct is unethical if responsible attorneys would differ in appraising the propriety of that conduct. In Re Ruffalo, 390 US 544, 55, 88 S.Ct. 1222, 1226, 20 Led2d 117 (1968) The remedy is clear. The practice of law is not a matter of grace, but of right for one who is qualified by his learning and his moral character. See Schware v. Board of Bar Examiners, supra, and Ex Parte Garland, [71 US 333, 18 L.Ed 366] 4 Wall. 333 (1867). This record is wholly barren of one word, sentence, or paragraph that tends to show this [person] is not morally and professionally fit to serve honorably and well as a member of the legal profession. It was error not…to admit [him] to the…Bar. Baird v. State Bar of Ariz., 401 U.S. 1, 91 S. Ct. 702, 27 L. Ed. 2d 639 (1971). The bar most certainly would not regard a client who has acted on the advice of counsel as one who has proceeded recklessly or immorally. Indeed the client 51 who follows advice would likely enjoy the universal approbation of attorneys and need not fear a charge of moral dereliction. The elder Mr. Leo having met all the qualifications and there being no evidence of moral failing at this time, he ought be readmitted. A thoughtful written decision would do more than provide a basis for further review, it might have alerted the Appellate Division to the errors of law and logic that led to an irrational result in the Full Committee. In Re Garland, supra; Matter of Cooper, supra; Schware v. Board, supra; In Re Stolar, 401 US 23, 95 SCt 1127, 27 LE2d 657, (1971); Baird v. State Bar, 401 US 1, 91 S.CT 713, 27 Led2d 639 (1971). Said Judge Samuel L. Selden long ago in Matter of Cooper, (supra): It being ascertained that the applicant…his admission follows as a legal necessity. It is certainly clear, as a general rule, that whenever that law confers a right, and authorizes an application to a court of justice to enforce that right, the proceedings upon such an application are to be regarded as of a judicial nature; and I am unable to perceive any just ground upon which the present case can be considered as an exception. Matter of Cooper, supra. CONCLUSION The Order of the Appellate Division ought to be reversed and the application for readmission granted. Dated: October 16, 2015 Ronkonkoma, New York 52 Ronkonkoma, NY 11 779 (631) 588-6244