Pop quiz for busy lawyers: Have you . . . completed your CLE required courses? Filed your attorney registration statement? Paid the $375 biennial registration fee? Updated the Office of Court Administration if you moved your office or home within the past month? Filed your personal tax returns? If you answered "no" to any of these questions (or know another lawyer who might), read on. Your law license may be at risk.
This two-part article will address the potentially disastrous consequences of not keeping up with personal professional obligations, which can happen to the best of lawyers and the most well-intentioned of friends and colleagues. Delay and procrastination are hardly exotic or rare issues for busy lawyers. We all occasionally put off an unpleasant or burdensome task for another day. For some, that day never seems to come.
Today's article focuses on attorney registration and CLE requirements. Part Two will explore the consequences of failing to file personal tax returns, a problem for more than a few prominent lawyers, including those without any intent to evade their tax obligations.
Attorney Registration in New York
New York lawyers are required to register every two years with the Office of Court Administration (OCA). Registration coincides with your birthday - the first reminder is sent out a month before. Registration has three key components: completing 24 CLE credits in the 24-month period prior to registration; paying the $375 fee (which may be increasing soon to $425); and actually filing the registration form.
Lawyers who do not file, pay, or complete their CLE courses can wind up in hot water. It turns out, perhaps not surprisingly, that the Appellate Departments are not loath to suspend lawyers who are delinquent in meeting their registration obligations. Indeed, the courts now routinely suspend delinquent lawyers in bulk when they have missed more than two consecutive registration periods.
Just recently, the Attorney Grievance Committee for the Third Department petitioned the Appellate Division to suspend 2,601 attorneys for failing to re-register.1 In the First Department, approximately 3,000 attorneys are listed on the Appellate Division's website as administratively suspended for failing to re-register.2 Why do so many New York lawyers fail to re-register?
Here are some of the proffered answers: "I did not receive the notices from OCA." "I was too busy and did not have time to take 24 CLE credits in the last two years." "I did not have the $375 to pay the fee." "I would have filed, but I never received the renewal notices." "I received the form, but misplaced it." "I meant to file, but just kept putting it off."
Delay is one of the tools of our trade - it serves some of our clients well in certain situations. Procrastination, like delay, may sometimes seem like an effective strategy for a thorny problem. If we just ignore a nettlesome issue, many times it will resolve itself without any effort. There is no shortage of pressing problems to juggle - work deadlines, family matters, health upheavals, financial stresses, just to name a few. Taking hours of CLE courses (after the deadline has passed) and filing overdue registration statements can easily get pushed to the bottom of the "to do" list.
That is unfortunate because the conseuences of not re-registering can be harsh, even with the best of intentions. The Appellate Departments have held that failing to re-register is professional misconduct, sometimes warranting immediate suspension.3 A lawyer who unwittingly continues to practice law while administratively suspended may be engaging in the unauthorized practice of law and risking disbarment.4 The price of procrastination can be exorbitant.
The explanations that lawyers offer for not registering may fall on deaf ears. In re Vayer dealt with a lawyer who was administratively suspended in 2010, as part of a mass suspension proceeding, for failing to re-register and pay registration fees.5 Years later, the Attorney Grievance Committee discovered that he was still practicing and moved to disbar him. Vayer protested, citing his intense involvement in major litigation; the serious personal and professional stressors in his life; the fact that he was not aware that he had been suspended in 2010 because he had moved both his office and residence and never received notices sent to him by OCA; and his inability to renew his biennial registration because he was unable to complete his CLE requirements. He testified that he believed that he "would be able to catch up on his CLE and registration obligations, but as more time passed the task became overwhelming." The court rejected all of these explanations and continued his interim suspension.6 Vayer ultimately agreed to a final three-year suspension, effective December 2017.7 He remains suspended.
In In re Fitzsimons, the Appellate Division suspended an attorney for failing to re-register for 12 years. Despite numerous notices from the Grievance Committee, and many chances to re-register, Fitzsimons failed to act. He blamed his failures on his wife's hospitalization and illnesses, and claimed at one point that he was unaware of his failure to re-register because his wife paid their bills. The court dismissed his explanations and suspended him for six months.8
Another lawyer who claimed she was confused about her CLE obligations was publicly censured for failing to re-register for 10 years.9 In another case, the court imposed a one-year suspension on a lawyer who failed to re-register for three biennial periods, crediting her steps to develop coping skills in order to fulfill her responsibilities "during times of extreme stress and disruption," among other things.10 The court rejected another lawyer's claim that he did not receive any of the communications sent to him by the Grievance Committee regarding his failure to re-register for 10 years and suspended him for six months.11
The consequences of failing to re-register can be severe. So, what is a delinquent lawyer to do?
The initial steps are obvious. Check your present attorney registration status online by visiting http://iapps.courts.state.ny.us/attorney/AttorneySearch. Update your home and office addresses, if necessary. Complete your CLE courses (including four ethics credits and one diversity credit). Pay the outstanding fees. File the registration forms. Most lawyers who miss one, or even two, registration periods are not suspended. However, the longer you wait, the harder it is to comply.
The Basic Registration Rules
Every attorney admitted to practice in New York State, in good standing or not, whether resident or non-resident, active or retired, practicing law in New York or elsewhere, is required to renew their attorney registration every two years, within 30 days after their birthday. The registration fee is $375 for all attorneys except for those who certify that they are retired from practice.12
Registration may be accomplished by mail, online, or in person. Attorneys are required to update their office and home addresses if they move, "within 30 days of such change." This may be done online.13
For many attorneys, the biggest hurdle is completing the 24 CLE credits within the prior two-year period before registration. While requiring CLE was intended to benefit the profession and make sure lawyers were current in their knowledge of the law and ethics rules, the requirement can be burdensome and the benefits sometimes elusive. CLE courses can be expensive, the available options are not always interesting or convenient, and finding the time is never easy. If you do not complete your courses on time, apply to the CLE Board for a waiver and an extension. The forms can be found on OCA's website. Some lawyers are exempt from paying the registration fees and completing the CLE courses. If you are not practicing law in New York or are doing CLE in compliance with another state's rules, you may be exempt from some of the New York requirements.
What Happens if You Are Suspended Administratively?
If you were suspended administratively for failing to register, you may apply for reinstatement. Each Appellate Department has different rules and procedures for seeking reinstatement from an administrative suspension. The Third Department is the most rigorous, requiring a full reinstatement application pursuant to the Uniform Rules for Attorney Disciplinary Matters. Lawyers seeking reinstatement must, among other things, take and pass the Multi-State Professional Responsibility Exam (MPRE), again! The First Department has established a specific, expedited reinstatement process for administratively suspended attorneys.14
At a minimum, a lawyer who has been administratively suspended for failing to re-register should get current as quickly as possible. Pay all back due registration fees, update all information on the registration forms, and, if necessary, seek a waiver and extension of the time to complete past CLE requirements. This is a prerequisite for reinstatement in any department.
The CLE Hurdle
In re Vayer (discussed above) highlights the fact that falling behind on CLE credits creates a growing backlog which may cause a lawyer to put off re-registration because the lawyer cannot certify that he or she has completed the requisite number of CLE credits. CLE requirements are mandatory and substantial in New York, with different rules applicable to newly admitted attorneys (within two years of admission). With certain significant exceptions, every attorney admitted to practice in New York is required to certify on that he or she has completed CLE requirements when they re-register with the OCA.15 Experienced attorneys must complete 24 credit hours of continuing legal education for each biennial period in designated course categories. More credit hours and different course distributions and modalities apply to newly admitted attorneys. The complete CLE Program Rules are listed on OCA's website.
Lawyers who fall behind on CLE courses may apply to the CLE Board for a waiver or modification of program requirements or a request for an extension of time to complete program requirements, or both. Application forms and instructions can be found online.16
Get and Stay Current
Take heart. Most delinquent lawyers are not suspended from practice. The mass suspensions of delinquent lawyers occur periodically and typically involve lawyers who have failed to re-register for more than four years and have missed two or more registration cycles. Lawyers who are late in filing their registration forms will find that their public listing reflects the fact that they are "delinquent."
The New York Times recently reported that procrastination is an emotional issue, not a time-management problem. Chronic procrastination is difficult to overcome because our brains are hard-wired to prioritize avoiding present threats (tasks that make us feel anxious) over making thoughtful decisions about the future. Although it brings momentary relief, putting something off, of course, simply compounds the negative associations with the task. The major cure for this trap may come as a surprise - forgive yourself for your past mistakes. Then, being aware of your emotional state as you face your task, consider the positive potential effects of action, strategize to put your favorite distractions at a distance, and focus solely on taking the first step.17 If that sounds too touchy-feely, the practical take-away is that it is important to begin to tackle the problem.
For most, this means checking your registration status and making sure your information is correct and up to date. Now. To prevent mishaps, calendar future re-registration dates. Sign up for some CLE courses. If you suspect that you might not be in compliance, find out and take steps to get up to date. Attorneys who are delinquent in registering for up to five biennial periods (10 years) may still re-register online.18
Go forth and prosper! Stay safe! Be well!