59 N.Y.2d 549 | NY | 1983
OPINION OF THE COURT
The standard of proof for a determination of professional misconduct in an attorney’s disciplinary proceeding is a fair preponderance of the evidence, not clear and convincing evidence. In the absence of good cause shown why a hearing conducted incident to such proceedings should not be open to the public, on a written waiver of confidentiality by the attorney respondent in such proceedings and a request by that attorney that the hearings be open, it is error to deny such request.
Two issues are presented for our resolution. Appellant contends that the standard of proof in attorney disciplinary proceedings should be “clear and convincing evidence” rather than a “fair preponderance of the evidence”, and that if the attorney respondent in the proceedings waives all confidentiality he is entitled to have all hearings open to the public.
It has consistently been held by the Appellate Divisions that the standard of proof in attorney disciplinary proceedings is a fair preponderance of the evidence (Matter
With respect to appellant’s claim that he was entitled to have the hearings in this instance opened to the public, we agree, but find it unnecessary to reach his constitutional contentions. The statute on which the Appellate Division and respondent rely for closure of the hearings in the face of appellant’s express waiver, subdivision 10 of section 90 of the Judiciary Law, literally read, does not address the question whether attorney disciplinary hearings shall be closed or open to the public. It provides in pertinent part: “Any statute or rule to the contrary notwithstanding, all papers, records and documents * * * upon any complaint, inquiry, investigation or proceeding relating to the conduct or discipline of an attorney or attorneys, shall be sealed and be deemed private and confidential”. The Appellate Division, First Department, has concluded that this subdivision imposes no nonwaivable blanket bar to public hearings as is manifested by the promulgation of section 6.2 of the rules of its Departmental Disciplinary Committee which provides:
“Upon the written waiver of confidentiality by any Respondent, all participants shall thereafter hold the matter confidential to the extent required by the terms of the waiver.”
The provisions for confidentiality set forth in subdivision 10 of section 90, even if in principle considered relevant to the public hearing question, were enacted primarily, if not only, for the benefit of the attorney under investigation.
Accordingly, the order of the Appellate Division should be reversed, without costs, all evidence before the referee
Chief Judge Cooke and Judges Jasen, Wachtler, Meyer and Simons concur.
Order reversed, without costs, all evidence before the referee stricken, the referee’s report vacated and matter remitted to the Appellate Division, Third Department, for further proceedings in accordance with the opinion herein.
. Neither the promulgation of that rule nor the determination in this case may be treated as an ad hoc exercise of the discretion granted the Justices of the Appellate Division, in the second sentence of subdivision 10, upon good cause shown to permit to be divulged “all or any part of such papers, records and documents”.
. (See Amer Bar Assn, Evaluation of the Lawyer Disciplinary Systems of the State of New York, Final Report [Dec., 1982], p 41.)
. (Op. cit., pp 41, 42; see, also, American Bar Association Joint Committee on Professional Discipline, Professional Discipline for Lawyers and Judges [1979], 8.24.)