Opinion
Argued September 11, 1978
Decided October 19, 1978
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department.
Alfred Berman for appellant.
Nicholas C. Cooper for respondent.
We decline the invitation to reconsider our decision of but a year ago in Matter of Chu ( 42 N.Y.2d 490) in which we held that, under subdivision 4 of section 90 of the Judiciary Law, conviction of a Federal felony works an automatic disbarment in New York State of a defendant attorney. We then held that it is immaterial that there is no felony analogue under our State statutes matching the Federal felony. As we then noted, this marked a significant departure from our prior holding in Matter of Donegan ( 282 N.Y. 285).
The thrust, if not the particular application, of the expressions of concern by our dissenting brothers pertains to the statutory mandate that "[a]ny person being an attorney and counsellor-at-law, who shall be convicted of a felony, shall, upon such conviction, cease to be an attorney and counsellor-at-law, or to be competent to practice law as such" (Judiciary Law, § 90, subd 4). If, as they urge, consideration should be given to the gravity of the offense and to mitigating circumstances, on principle this would seem to be equally true with respect to convictions for New York felonies. Yet, as the dissenters recognize, the validity of the concept of automatic disbarment as applied to New York felonies has long been upheld.
In Chu, for the reasons there articulated we concluded "that conviction of an attorney for criminal conduct judged by the Congress to be of such seriousness and so offensive to the community as to merit punishment as a felony is sufficient ground to invoke automatic disbarment. * * * we now perceive little or no reason for distinguishing between conviction of a Federal felony and conviction of a New York State felony as a predicate for professional discipline" (pp 493-494). Nothing has occurred in the intervening months to compel a different conclusion.
The order of the Appellate Division should be affirmed, without costs.
While we agree with the majority that summary disbarment of a New York attorney convicted of a New York State felony is mandated by statute (Judiciary Law, § 90, subd 4) as interpreted by prior decisional law (Matter of Donegan, 282 N.Y. 285), we dissent from an unwarranted extension of this disbarment rule to all Federal felony convictions. Today's decision may be viewed only as a direct overruling of Donegan and the establishment of a per se rule which compels the summary disbarment of a New York attorney convicted of any felony in a Federal court in this or any other State, regardless of whether our Legislature has denominated the offense as felonious. No longer may consideration be given to the gravity of the offense and mitigating circumstances, no matter how compelling; the drastic result is fixed. This inflexibly harsh rule needlessly rejects the principle that firm discipline can be achieved without sacrificing fairness and reason (see concurring opn Matter of Chu, 42 N.Y.2d 490, 495). The abberational results which today's determination will bring may now be avoided only by legislative action.
Chief Judge BREITEL and Judges JASEN, GABRIELLI and JONES concur in Per Curiam opinion; Judges WACHTLER, FUCHSBERG and COOKE dissent and vote to reverse in a memorandum.
Order affirmed.