Could Spitzer Lose His Law License?

[WSJ_law_blog]

The above question could be of serious import to New York’s governor. Were he to resign, a likely next stop might be a law firm looking to take advantage of not only his connections, but also his legal chops. This is a guy, after all, who it seems to us would have the makings of a killer white-collar defense lawyer. Of course, any Dan Petrocelli-dreams that Eliot Spitzer might have would vaporize were he to lose his license to practice law.

Though there’s been no hint that Spitzer is going to be prosecuted under New York law, we still thought we’d throw out the question: What happens to a New York state lawyer’s law license when the lawyer is found guilty of patronizing a prostitute under Section 230 of the New York State penal code?

The charge that Spitzer might be charged with, patronizing a prostitute in the 4th degree, is a class B misdemeanor in New York. As such, it probably doesn’t rise to the level of the kind of lawyer misconduct required for disbarment, says criminal defense lawyer Brad Simon. “There are plenty of lawyers out there practicing who?ve committed misdemeanors. Disbarment is usually reserved for when there’s a felony.”

But right now, the investigation is in the hands of federal, not state, prosecutors. The potential federal charges surfaced in news reports — such as felonies like structuring or money laundering — make the disbarment calculation a bit more complicated, says legal-ethics guru Stephen Gillers. Gillers explains that in New York, a conviction for a state felony results in an automatic disbarment. But, a conviction for a federal felony renders an extra step. Says Gillers: “The lawyer is suspended while the disciplinary authorities — here, the disciplinary committee in Manhattan, since that’s where he last practiced — decides whether the federal felony has a state-felony analogue, or, if the federal felony would be a misdemeanor in the state system.”

If there’s a state-felony analogue, says Gillers, it means instant disbarment. But, if the state analogue is a misdemeanor, then the disciplinary committee decides what sanction it believes the underlying facts warrant — disbarment, suspension or a public reprimand — and then brings formal charges. (Under New York state law, money laundering is a felony.) In New York, the final disbarment decision is made by the courts.

“Suspension is always for fixed period — usually 30 days to 5 years — at the end of which you can be readmitted,” said Gillers. “As for disbarment in New York it’s not permanent. Six years later you can reapply. It’s quite unusual for a lawyer who’s been disbarred to be readmitted. But the most famous case is Sol Wachtler, the judge who was convicted of a felony in the Southern District for stalking his lover, and was later readmitted.”