Matter of Brody: Disbarment by Consent with Restitution Convertible to a Civil Judgment under Judiciary Law § 90(6-a)

Introduction

In Matter of Brody, 2025 NY Slip Op 05079 (Appellate Division, Second Department, Sept. 24, 2025), the Court accepted the resignation of Elizabeth Diane Brody, a suspended attorney, pursuant to 22 NYCRR 1240.10. The decision immediately disbarred the respondent and imposed restitution obligations under Judiciary Law § 90(6-a), explicitly authorizing the resulting order to be entered and enforced as a civil money judgment.

The case arises from pending disciplinary charges and a broader investigation by the Grievance Committee for the Ninth Judicial District. The formal charges alleged violations of the Rules of Professional Conduct based on noncooperation with the Grievance Committee and failure to comply with court subpoenas, as well as issuing an escrow check without sufficient funds. In parallel, the Grievance Committee was investigating serious allegations of misappropriation of client funds and related misconduct. The respondent submitted an affidavit acknowledging that she could not successfully defend against the charges and allegations, and sought to resign with consent to restitution and the other statutory and rule-based consequences of discipline.

The key issues presented include: (1) whether the respondent’s resignation satisfied the strict requirements of 22 NYCRR 1240.10; (2) the consequences of accepting such a resignation, including immediate disbarment; and (3) the scope and enforceability of restitution under Judiciary Law § 90(6-a), including coordination with the Lawyers’ Fund for Client Protection and the convertibility of the order to a civil money judgment.

Summary of the Opinion

The Court granted the respondent’s application to resign under 22 NYCRR 1240.10 and, effective immediately, disbarred her and struck her name from the roll of attorneys. The opinion:

Confirms that the resignation was voluntary, informed, and compliant with 22 NYCRR 1240.10.
Orders the respondent to comply with all rules governing disbarred or suspended attorneys (22 NYCRR 1240.15) and to desist and refrain from all legal practice and representation activities.
Directs restitution under Judiciary Law § 90(6-a): reimbursement to the Lawyers’ Fund for Client Protection for any awards made to West 128th Street, LP and/or NY Residential Property Works, LLC, and, if no awards (or only partial awards) have issued, direct (or partial) restitution to those entities in the amount of $300,000.
Provides that the opinion and order may be entered as a civil judgment enforceable as a money judgment, subject to offsets for any amounts paid by the Lawyers’ Fund and subrogation in the Fund’s favor.
Declares that the affidavit of resignation and related records are public under Judiciary Law § 90(10).

Analysis

Precedents and Authorities Cited

22 NYCRR 1240.10 (Resignation by consent): This is the central authority governing resignations tendered while disciplinary matters are pending. It requires an affidavit acknowledging the nature of the charges, the inability to defend, and the consequences—most importantly, that acceptance results in disbarment. The Court found full compliance and granted the application.
22 NYCRR 1240.9(a)(1), (3), (5) (Immediate suspension): In a prior decision (Aug. 12, 2024), the Court immediately suspended the respondent based on uncontroverted evidence of default in responding to judicial subpoenas and failure to cooperate with the Grievance Committee. The present opinion references that earlier action (Matter of Brody, 2024 NY Slip Op 72531[U]) as procedural background underscoring the severity of the situation and the respondent’s noncooperation.
22 NYCRR 1240.8 (Formal proceedings): The pending disciplinary petition alleged, among other things, conduct prejudicial to the administration of justice and conduct adversely reflecting on fitness, and a dishonored escrow-related check, grounded in Rule 8.4(d) and (h).
Rules of Professional Conduct (22 NYCRR 1200.0) Rule 8.4(d), (h): Rule 8.4(d) prohibits conduct prejudicial to the administration of justice. Rule 8.4(h) captures conduct that adversely reflects on a lawyer’s fitness. The petition invoked these provisions for noncooperation and escrow-related misconduct. The ongoing investigation also alleged dishonesty, misappropriation, contempt of court, and frivolous motion practice.
22 NYCRR 1240.15 (Duties of disbarred or suspended attorneys): The order compels ongoing compliance with post-discipline obligations (e.g., notices to clients and courts, winding up practice, restrictions on fiduciary accounts), and requires the return of any secure pass issued by the Office of Court Administration.
Judiciary Law § 90(6-a) (Restitution and reimbursement): The Court directs restitution to the named entities and reimbursement to the Lawyers’ Fund, and expressly authorizes entry and enforcement of the order as a civil judgment, including subrogation mechanics and credits for any amounts paid by the Fund.
Judiciary Law § 90(10) (Public records): The affidavit of resignation and associated records are public upon acceptance, ensuring transparency of the disciplinary resolution.

Legal Reasoning

The Court’s reasoning is concise and mechanistic, reflecting the structured framework of Part 1240:

Threshold compliance with 22 NYCRR 1240.10: The respondent’s affidavit acknowledged the pendency of formal charges and a broader investigation; admitted she could not successfully defend against the allegations; affirmed the voluntariness of her resignation; and accepted the consequence that acceptance would result in disbarment. These acknowledgments satisfy the procedural preconditions for acceptance of a resignation by consent.
Immediate disbarment upon acceptance: Part 1240 treats a resignation in the face of charges as a disbarment by consent. The Court therefore ordered that the respondent be disbarred effective immediately and her name be stricken from the roll.
Protective conditions pending and after acceptance: The affidavit and order impose prophylactic limits to protect the public and clients: no new representations or retainers; no transactional activity in any fiduciary account except to pay funds to those entitled; and comprehensive compliance with the rules governing disbarred attorneys, including ceasing all practice and related activities.
Restitution architecture under Judiciary Law § 90(6-a): The Court structured relief to prioritize making victims whole while preventing double recovery: (a) reimbursement to the Lawyers’ Fund for any awards it makes; (b) if no awards (or only partial awards) have been made, direct restitution (or partial restitution) to the identified entities for $300,000; and (c) authorization to docket and enforce the order as a civil money judgment, with appropriate offsets and subrogation in favor of the Fund. This implements § 90(6-a)(a), (d).
Public access to records under § 90(10): By acknowledging that the affidavit and related materials become public, the respondent accepted the transparency integral to discipline by consent, ensuring that the bar and the public can understand the basis and terms of the disposition.

Impact and Forward-Looking Significance

While the opinion applies established rules, it is significant in at least three respects:

Operationalizes “disbarment by consent” with clear restitution pathways: The opinion exemplifies how resignations under Part 1240.10 can be paired with targeted restitution orders naming specific recipients and amounts, integrated with the Lawyers’ Fund’s role, and made independently enforceable as civil judgments. This model offers clarity for victims, the Fund, and the bar.
Signals rigorous consequences for noncooperation and escrow abuses: The procedural history—immediate suspension for failure to cooperate and noncompliance with subpoenas—coupled with the resignation and disbarment, underscores the Appellate Division’s intolerance for noncooperation and trust-account violations. Practitioners should expect swift interim relief (e.g., suspension) and robust final orders when client funds and court processes are compromised.
Streamlines public protection and compensation: By front-loading restitution determinations and enabling civil judgment enforcement, the Court lowers the friction for victims (and for the Fund as subrogee) to be made whole. This may become a routine feature of consent disbarments in misappropriation cases, incentivizing early, candid resolutions and reducing contested disciplinary litigation where defenses are untenable.

Complex Concepts Simplified

Resignation by consent (22 NYCRR 1240.10): A lawyer facing charges can choose to resign. If the Court accepts the resignation, it is treated as disbarment. The lawyer must acknowledge the charges and that they cannot successfully defend against them, and must accept the disciplinary consequences.
Disbarment by consent: A shorthand for what happens when a resignation under 1240.10 is accepted: the lawyer is disbarred immediately, without a full contested hearing.
Lawyers’ Fund for Client Protection: A statutory fund that compensates clients who lose money due to a lawyer’s dishonest conduct. When it pays a claim, it becomes “subrogated” to the client’s rights to recover from the lawyer.
Restitution vs. reimbursement: Restitution is payment from the lawyer directly to the harmed client(s). Reimbursement is payment from the lawyer to the Lawyers’ Fund to repay what the Fund paid out on the client’s behalf. Orders are structured to avoid double payment.
Entry as a civil judgment (Judiciary Law § 90(6-a)(d)): The disciplinary order can be recorded like a court judgment. The payee (the client or the Fund) can use standard judgment enforcement tools—like bank restraints or executions—to collect, with credits for any sums already paid by the Fund.
Misappropriation of escrow/client funds: Using or diverting client or third-party money held in trust for any unauthorized purpose. It is among the most serious forms of attorney misconduct.
Conduct prejudicial to the administration of justice (Rule 8.4(d)): Acts that obstruct, undermine, or disrespect court processes or the justice system—e.g., ignoring judicial subpoenas or a Grievance Committee’s lawful demands.
Conduct adversely reflecting on fitness (Rule 8.4(h)): A catch-all for behavior indicating that a lawyer is unfit to practice, even if it does not fit neatly within other rule violations.
Confidentiality and public records (Judiciary Law § 90(10)): While disciplinary investigations are generally confidential, final orders and the resignation affidavit in a consent disbarment become public, promoting transparency.

Contextual Background from the Record

The opinion notes the procedural history and allegations framing the resignation:

Immediate suspension on August 12, 2024 for failure to cooperate with the Grievance Committee and to comply with judicial subpoenas (22 NYCRR 1240.9(a)(1), (3), (5)).
A March 18, 2024 petition alleging four charges; charge four was withdrawn on September 18, 2024.
Remaining allegations including noncooperation, failure to comply with subpoenas, and issuing an escrow check without sufficient funds—charged under Rule 8.4(d), (h).
Ongoing investigation into misappropriation of $300,000 of client funds held for West 128th Street, LP and/or NY Residential Property Works, LLC; possible additional unaccounted misapplications; failure to pay over funds on request; dishonesty and misrepresentation to a court; contempt for noncompliance with a court order; filing a frivolous motion; and continued noncooperation.
The respondent’s sworn acknowledgment that she could not successfully defend against these charges and allegations, and her consent to restitution and to all disciplinary consequences.

Practice Implications

For respondents and counsel: Where the evidentiary record is overwhelming—particularly in trust-account misconduct—resignation by consent can expedite resolution, protect the public, and facilitate restitution. Counsel should address restitution structure, Lawyers’ Fund coordination, and civil judgment convertibility in proposed orders.
For the Grievance Committees: This opinion models how to integrate § 90(6-a) relief into consent orders, naming beneficiaries and amounts, and preserving offsets and subrogation, thereby improving the speed and certainty of victim compensation.
For clients and third parties: The order provides a clear pathway to recovery—either through the Lawyers’ Fund or direct restitution—and confirms that the order can be enforced like any civil money judgment.
For the bar at large: The decision underscores that failure to cooperate with disciplinary authorities and courts can itself warrant severe interim and final measures, independently of any underlying financial misconduct.

Conclusion

Matter of Brody reinforces the established but critical architecture of New York’s attorney discipline system: a resignation by consent under 22 NYCRR 1240.10 results in immediate disbarment; the Court may and will tailor restitution mechanisms under Judiciary Law § 90(6-a) to make victims whole while coordinating with the Lawyers’ Fund; and such orders can be docketed and enforced as civil judgments. By marrying disbarment by consent with a robust, enforceable restitution framework, this opinion both protects the public and clarifies practical recovery avenues for victims of misappropriation, while sending a strong signal that noncooperation with the disciplinary process and misuse of escrow funds are met with swift, decisive sanctions.