The Crime of Lawyer Theft Timothy J. O’Sullivan, Esq. Executive Director NYS Lawyers’ Fund for Client Protection

Lawyers who steal should be criminally prosecuted!

A. Disciplinary Proceedings In New York, Judiciary Law section 90 provides that attorney disciplinary proceedings are “private and confidential”. The Appellate Divisions may issue a sharing order allowing Disciplinary Committees to divulge disciplinary papers, records and documents. The New York Lawyers’ Fund recommends a uniform disciplinary policy that a Disciplinary Committee will make a prompt referral to criminal prosecutors when the Committee has admitted or uncontested evidence of theft by a lawyer. (1) Referrals and complaints to criminal prosecutors.

B. Lawyers’ Fund Proceedings Board of Trustees’ Regulations (22 NYCRR (a)) Effective January 1, 2015, the Trustees’ Regulations were amended to codify the policy of requiring claimants to the New York Lawyers’ Fund to file disciplinary and criminal complaints: (a) Filing claims. “Unless the attorney accused of dishonest conduct is deceased, a claimant may be required to file both disciplinary and criminal complaints against the attorney and provide copies of such complaints within 30 days of the date of the Fund’s letter acknowledging receipt of an application for reimbursement.” (1) Referrals and complaints to criminal prosecutors.

1. Client Protection 2. Promote Public Confidence in Justice System 3. Assist a Fund in investigating alleged losses 4. Deter false claims 5. Encourage Dishonest Lawyers to pay restitution in order to avoid criminal prosecution or lessen criminal sentence 6. Obtain restitution orders 7. Protect creditor rights in bankruptcy proceedings Section 523 (a) of the Bankruptcy Code provides that exceptions to discharge include debts: (4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny; (7) for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit.... (2)Rationale for Referrals and Complaints to Disciplinary and Criminal Prosecutors

(3) Federal Criminal Restitution Order

(4) State Criminal Restitution Order A. Fund Form Letter to District Attorney requesting criminal restitution order

(4) State Criminal Restitution Order B.New York Penal Law Section authorizes criminal court to order restitution as part of the criminal sentence: N.Y. PEN. LAW § : NY Code - Section 60.27: Restitution and Reparation 1. In addition to any of the dispositions authorized by this article, the court shall consider restitution or reparation to the victim of the crime and may require restitution or reparation as part of the sentence imposed upon a person convicted of an offense, and after providing the district attorney with an opportunity to be heard in accordance with the provisions of this subdivision, require the defendant to make restitution of the fruits of his or her offense or reparation for the actual out-of-pocket loss caused thereby and, in the case of a violation of section , , , or of this chapter, any costs or losses incurred due to any adverse action taken against the victim

(4) State Criminal Restitution Order C.New York Criminal Procedural Law Section authorizes criminal restitution order to be filed by the District Attorney with the county clerk as a money judgment against the defendant. N.Y. CPL. LAW § : NY Code - Section : Collection of fines, restitution or reparation. 6. Civil proceeding for collection. (a) A fine, restitution or reparation imposed or directed by the court shall be imposed or directed by a written order of the court containing the amount thereof required to be paid by the defendant. The court's order also shall direct the district attorney to file a certified copy of such order with the county clerk of the county in which the court is situate except where the court which issues such order is the supreme court in which case the order itself shall be filed by the clerk of the court acting in his or her capacity as the county clerk of the county in which the court is situate. Such order shall be entered by the county clerk in the same manner as a judgment in a civil action in accordance with subdivision (a) of rule five thousand sixteen of the civil practice law and rules.

(4) State Criminal Restitution Order D. Sample State Criminal Restitution Order - People of State of New York v. Christopher Chadick

(4) State Criminal Restitution Order E.Sample Assignment of Judgment assignment to NY Lawyers’ Fund of criminal restitution order judgment.

(4) State Criminal Restitution Order F.Sample Lawyers’ Fund Recording of Assignment Lawyers’ Fund records its assigned judgment to secure creditor rights

(5) Disciplinary Proceeding Order of Restitution New York Judiciary Law section 90, subdivision (6-a) (a) authorizes the Appellate Division to order an attorney in a disciplinary proceeding to pay restitution: 6-a. a. Where the appellate division of supreme court orders the censure, suspension from practice or removal from office of an attorney or counsellor-at-law following disciplinary proceedings at which it found, based upon a preponderance of the legally admissible evidence, that such attorney or counsellor-at-law wilfully misappropriated or misapplied money or property in the practice of law, its order may require him or her to make monetary restitution in accordance with this subdivision. Its order also may require that he or she reimburse the lawyers' fund for client protection of the state of New York for awards made to the person whose money or property was wilfully misappropriated or misapplied. b. Monetary restitution, as authorized hereunder, shall be made to the person whose money or property was wilfully misappropriated or misapplied and shall be for the amount or value of such money or property, as found in the disciplinary proceedings. In the event that such person dies prior to completion of such restitution, any amount remaining to be paid shall be paid to the estate of the deceased. c. Any payment made as restitution pursuant to this subdivision shall not limit, preclude or impair any liability for damages in any civil action or proceeding for an amount in excess of such payment; nor shall any order of the appellate division made hereunder deprive a criminal court of any authority pursuant to article sixty of the penal law. d. An order issued pursuant to this subdivision may be entered as a civil judgment. Such judgment shall be enforceable as a money judgment in any court of competent jurisdiction by any person to whom payments are due thereunder, or by the lawyers' fund for client protection where it has been subrogated to the rights of such person. e. Where an attorney or counsellor-at-law is permitted to resign from office, the appellate division may, if appropriate, issue an order as provided herein requiring him or her to make payments specified by this subdivision. f. Notwithstanding any other provision of this subdivision, no order may be issued hereunder unless the person required to make payments under such order first is given an opportunity to be heard in opposition thereto.

Joseph F. Scirto, Jr. – 10 Awards: $106,962

The Crime of Lawyer Theft Timothy J. O’Sullivan, Esq. Executive Director NYS Lawyers’ Fund for Client Protection