In re Rosenbluth

Capozzoli, J. Respondent’s motion to modify a prior order of suspension so as to permit him to continue the operation of a calendar watching service during the course of his suspension, which was held in abeyance pending the receipt of a Referee’s report upon the nature and extent of the services to be rendered by respondent, is now granted. The Referee’s report which, in part, states that “ the operation of the calendar service * * * does not appear to require activities on respondent’s part, which would be violative of the order of suspension ”, is confirmed. The operative facts have been adequately set forth in the dissent, except to the extent that it seeks to characterize respondent as a direct employee of attorneys who subscribe to his calendar watching service. This is obviously an overly broad use of the term “ employment ”, in order to support the conclusion that respondent be barred from the challenged activities. This court should not, in the case of a suspended attorney, hastily move to prohibit him from engaging in endeavors which he could have undertaken had he never been admitted to the Bar in the first place. Where a suspended attorney is involved, as contrasted with a disbarred attorney, we must not lose sight of the fact that the Appellate Division still does have supervisory powers over his activities, and in case of any indiscretion, can take appropriate steps, including outright disbarment. The purpose of the rules of this court and provisions of the Judiciary Law are clear. Subdivision (a) of section 603.14 of title 22 of the rules of this court requires that a disbarred or suspended attorney or one who has resigned ' ‘ comply fully and completely with the letter and spirit of sections 478, 479, 484 and 486 of the Judiciary Law” (22 NYCRR 603.14[a]). These sections provide, respectively, that one not duly licensed or admitted to practice [385] law in this State may not practice law or hold himself out as practicing law; that it is forbidden for a person or his agent to solicit business for an attorney; that no person may ask for or receive compensation for performing legal services if he is not duly admitted to practice; and that any person whose admission to the Bar in this State has been revoked or suspended, who does any of the acts forbidden by article 15 of the Judiciary Law, shall be guilty of a misdemeanor. None of these prohibited activities are to be undertaken by respondent. A suspended or disbarred attorney holds approximately the same status as one who has never been admitted (7 Am. Jur. 2d, § 19, p. 53) and there are some law related activities which such attorneys have been permitted to engage in. These include aiding an attorney in good standing in the preparation of a law book (and his name may be used, American Bar Assn. Opinions of Committee on Professional Ethics and Grievances Informal Decision 0-566 [1962]), soliciting lawyers for process serving business to be turned over to a process serving firm (Association of the Bar of the City of New York, No. 132 [1930]) and associating as a principal with a process serving company or being employed by an insurance company as an investigator or adjuster (Association of the Bar of the City of New York, No. 147 [1930]). These areas appear to be equally, if not more, law-related than respondent’s chosen activity. The dissent relies in part upon Matter of Katz (35 A D 2d 159). That case involved employment of a suspended attorney by a City Marshal and is, therefore, clearly distinguishable from the instant case. A City Marshal’s “ work is closely allied with the courts and judicial proceedings ” and his “ duties include the enforcement of court orders ’ ’ and related activities (Matter of Katz, supra, p. 160). Running a calendar watching service does not entail such duties or activities. Under all of the circumstances and especially in view of the record compiled upon the reference and the Referee’s report, the majority of this court concludes that respondent should be permitted to continue his service during the course of his suspension.