No Appeal Of Called Third Strike

The New York Court of Appeals has held that the Appellate Division did not abuse its discretion in denying the third failed reinstatement attempt of a disbarred attorney

Just as the Appellate Division has control over an attorney’s disbarment, it too has control over an attorney’s reinstatement. In the Second Department, “an application for reinstatement may be granted by the court only upon a showing by clear and convincing evidence that [the attorney] has fully complied with the provisions of the order disbarring or suspending him or her . . . and that he or she possesses the character and general fitness to practice law” (former Rules of App Div, 2d Dept [22 NYCRR] § 691.11). Here, the court found that Brandes “engaged in the unauthorized practice of law during the period of his disbarment when he provided paralegal services over the internet” (Matter of Brandes, 2015 NY Slip Op 81096[U]). Specifically, the court found that Brandes would speak to an attorney over the telephone or by email, rendering legal advice or an opinion about the legal problems of a particular client, and that he contracted to draft briefs and other litigation papers for attorneys, all in violation of Judiciary Law § 478. 

Because “[t]he Appellate Division is the fact finder on issues of character and fitness and its discretion is inclusive” (Matter of Anonymous (79 NY2d 782, 783 [1991]), our standard of review is limited to whether the Second Department abused its discretion. Here, because there was record support for the court’s decision, there was no abuse of discretion in denying the reinstatement application.

(Mike Frisch)