Friday, August 23, 2013

Unblemished, Untarnished, Cross-Examined

The New York Appellate Division for the Second Judicial Department has imposed the identical reciprocal discipline of disbarment of an attorney who received that sanction from the Florida Supreme Court.

The attorney was convicted of conspiracy to commit wire and mail fraud.

He did not serve his cause well at the New York hearing:

The respondent testified with regard to his personal background and his early release from prison. Remorseful and believing that he had already been punished enough, the respondent asked that his punishment in New York be no greater than it is in Florida. He claimed that, prior to his lapse in judgment, he had an "unblemished and untarnished" reputation. On cross-examination, the Grievance Committee elicited that the respondent did not have an unblemished record, but had been issued two admonitions, two letters of caution (one of which related to four separate complaints), and one dismissal with advisement. The Grievance Committee also elicited the fact that the respondent's plea agreement required him to voluntarily surrender his license to practice law in New York prior to sentencing, and that he had not done so yet.

The Special Referee found the respondent's testimony evasive and self-serving, and concluded that there was no merit to the defenses raised by the respondent. The Grievance Committee now moves to confirm the report of the Special Referee. The respondent opposes the motion in part insofar as he seeks the imposition of a term of suspension in lieu of disbarment. He does not claim that the Florida proceedings deprived him of due process. He does, however, claim that disbarment in New York would be excessive and unjust. The Supreme Court of Florida did not disbar the respondent for a specified period. Florida's rules governing disbarred attorneys merely provide that an application for reinstatement may not be made sooner than five years from the date of disbarment. The fact that the waiting period is seven years in New York does not make disbarment by way of reciprocal discipline excessive or unjust. We conclude that the evidence, including the mitigation evidence presented, does not warrant the imposition of a five-year period of suspension in lieu of disbarment.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2013/08/the-new-york-appellate-division-for-the-second-judicial-department-has-imposed-the-identical-reciprocal-discipline-of-disbarm.html

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