My dissent is with respect to the procedural aspects and not as to the substantive aspects, except, of course, in the sense that the procedure raises questions of substance.
The respondent attempted to resign while under investigation. His resignation was rejected because he did not submit the affidavit required by the rules governing the conduct of attorneys, which in section 603.11, entitled “Resignation of attorneys under investigation or the subject of disciplinary proceedings”, requires an acknowledgment that “he could not successfully defend himself on the merits against such charges”. (22 NYCRR 603.11.) The purpose of the affidavit requirement is well set forth in the Report of the New York Committee on Disciplinary Enforcement (Eighteenth Annual Report of NY Judicial Conference, 1973, pp 234, 275 [Problem 12]). That report suggested for codification the specific language of this court’s section 603.11. To every extent possible, matters were not to be left in limbo, but charges were either to be acknowledged or properly proffered with the opportunity to defend, and prosecuted to a conclusion.
We now have a situation where, on the basis of alleged inability to make personal service, we proceed forthwith to judgment, no matter how justified it may seem to some. If this procedure is satisfactory, then a resignation in the face of the charges would have been at least as acceptable.
Markewich, J. P., Lupiano, Birns and Lane, JJ., concur in Per Curiam opinion; Kupferman, J., dissents in part in an opinion.
Respondent’s name struck from the roll of attorneys and counselors at law in the State of New York effective August 9, 1976.