The absence of oral argument in attorney discipline matters in Manhattan and Brooklyn came under scrutiny yesterday at a panel discussion on the differences in the imposition of lawyer discipline among the four Appellate Division departments.
Over the course of the 90-minute discussion at the New York State Bar Association's annual meeting at the Hilton New York, the panelists also touched on the lack of uniformity in the definitions of sanctions, the role of regional culture, the place of diversionary programs for attorneys addicted to drugs and alcohol and whether diversion should include mental illness.
On yesterday's panel at the New York State Bar's annual meeting at the Hilton New York are, from left, Presiding Justice Luis Gonzalez, First Department; Justice Mark Dillon, Second Department; Presiding Justice Karen Peters, Third Department; Anthony Gigliotti, principal counsel, Grievance Committee, Fifth Judicial District, Fourth Department; and professor Roy Simon of Hofstra Law. NYLJ/Rick Kopstein
On the topic of oral arguments, Presiding Justice Karen Peters of the Appellate Division, Third Department (See Profile), said, "I love seeing the people and hearing the people. The more they speak, the more I learn and that affects my decision."
Likewise, Anthony Gigliotti, principal counsel for the Attorney Grievance Committee in the Fifth Judicial District, Fourth Department, said he has seen cases where oral arguments "change the entire complexion of what you perceive is going on."
But Justice Mark Dillon (See Profile), who sits in the Second Department, which has the largest caseloads of the four, said oral arguments would "throw a monkey wrench" in the court's handling of other matters. The public, however, would be "proud" to know the level of discussion about the cases behind closed doors, he said.
Responding to an audience question about the court's willingness to entertain oral argument on "relatively minor commercial cases," but not disciplinary matters where a lawyer's livelihood could hang in the balance, Dillon said, "My colleagues indicated disciplinary cases where oral arguments made a difference. I'm not taking issue with that. I would take issue that, despite oral arguments, we're not fully versed" on the law and facts of the case.
Likewise, First Department Presiding Justice Luis Gonzalez (See Profile) said the department's use of a hearing panel consisting of attorneys and lay individuals already provided a "layer of protection" to attorneys facing discipline after a referee hears the case.
Panelist Roy Simon, a professor at the Maurice A. Deane School of Law at Hofstra University, said he was "uncomfortable with an all or nothing approach" as far as oral arguments and suggested their "discretionary" use.
Gonzalez later said he would introduce the idea of "discretionary oral arguments" to First Department judges. He noted that disciplinary cases foster the "most spirited discussions" among his colleagues.
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