Friday, October 2, 2009
The New York Appellate Division for the Second Judicial Department has imposed disbarment as reciprocal discipline for his resignation with bar charges pending in Connecticut. One notable aspect of the decision:
...the respondent submitted a verified statement setting forth each of the three enumerated defenses to the imposition of reciprocal discipline and requested a hearing. The hearing was conducted with the understanding that it was not a proceeding to relitigate the underlying merits of the misconduct.
The essence of the respondent's defenses is that he believed, based on his claims of off-the-record discussions with an assistant disciplinary counsel for the State Bar of Connecticut, that his resignation would end matters completely and that it would be as if the subject complaint and the Connecticut proceeding never existed. The respondent maintains that in order to reassure him, the disciplinary counsel indicated that only the resignation would be reported to other jurisdictions. From this, the respondent extrapolated that there could be no reciprocal discipline inasmuch as the underlying complaint had been completely erased. In effect, he analogized his resignation to a decision to retire from a corporation.
The Special Referee accepted the respondent's arguments and found that he had sustained his burden of proof with respect to all three of the enumerated defenses by a fair preponderance of the credible evidence.
While acknowledging that the respondent had notice of the Connecticut proceedings and an opportunity to be heard, the Special Referee found the respondent's account to be credible and found that misleading information given to him by the representatives of the Connecticut State Bar constituted a deprivation of due process.
The court here rejected the claims:
The record establishes that the respondent was well aware of the possibility of the imposition of reciprocal discipline after this jurisdiction received notification of his Connecticut resignation, particularly since it also contained a waiver of the privilege of reapplying at any time in the future. The testimony of the respondent and his life partner provide ample support of the misconduct which led to his resignation.
Under these circumstances, we conclude that the imposition of reciprocal discipline would not be unjust and that the Special Referee erred in concluding that the respondent had sustained his burden of proof with respect to that defense. Accordingly, the respondent's cross motion to confirm the Special Referee's report and dismiss the reciprocal proceeding is denied and the Grievance Committee's motion, in effect, to impose reciprocal discipline and cross motion to disaffirm the Special Referee's report and impose such discipline as the court may deem just and proper are granted.
In determining an appropriate measure of discipline to impose, the Grievance Committee points out that the respondent has no prior disciplinary history in this jurisdiction. He was previously reprimanded in Connecticut for delay in returning escrow funds, similar to the underlying charges which led to his resignation. The respondent's counsel conceded the existence of professional misconduct. Nevertheless, the record reveals an attempt by the respondent to extricate himself from a Connecticut grievance yet retain full privileges of Bar membership in New York. Having chosen to forgo a hearing on those charges and enter a substantive defense in Connecticut, the respondent is now attempting to undo the consequences of his choice. Under the circumstances, the respondent is disbarred in New York on the basis of his Connecticut resignation.