Friday, December 26, 2008
An attorney who had accepted a censure in Montana for misconduct in connection with a motion for pro hac vice admission to a Montana federal court was reciprocally disciplined by the New York appellate Division for the Second Judicial Department. The New York court rejected a variety of challenges to the imposition of the identical sanction:
The respondent's argument is that none of these charges would be worthy of the imposition of discipline in New York. In his view, his admitted violations were ministerial and technical and would not warrant punishment if charged in New York.
Based upon the evidence adduced, the defenses advanced by the respondent are without merit. The respondent was not deprived of due process in the Montana proceeding in which he was represented by able counsel and had ample opportunity to be heard and to present evidence in his own defense. He participated in the investigation and was fully apprised of the ramifications of his stipulation.
Nor was there such an infirmity of proof establishing the misconduct as to give rise to a clear conviction that this Court, consistent with its duties, could not accept the findings of the Montana court as final. The terms of the Tendered Conditional Admission and Affidavit of Consent are clear. Although he was not yet an admitted attorney in Montana, the respondent was an experienced New York attorney who could not persuasively argue that he was ignorant of the importance of that writing. Notwithstanding the respondent's categorization of his violations as ministerial and technical, he nevertheless made material misrepresentations to a court of law, even if by omission.
The attorney testified in the New York proceeding that he had accepted the Montana sanction by stipulation because his lawyer had advised him that he would "never...do better" if he contested the charges. (Mike Frisch)