Monday, October 28, 2013

Treatment Mitigates Sanction

The New York appellate Division for the First Judicial Department has imposed a public censure of an attotney for a series of DWI incidents that spanned from 2004 to 2011.

The court rejected the implied request for a suspension by the Departmental Disciplinary Committee, finding that the attorney's participation in the lawyer counseling program merited a lesser sanction:

The facts here, viewed in conjunction with the relevant precedent, favor public censure with respondent's continued participation in LAP (see Matter of Krishnan, 99 AD3d 207 [1st Dept 2012][censure for misdemeanor convictions of aggravated driving while intoxicated and giving unlawful gratuities to a police officer]; Matter of Antomattei, 96 AD3d 136 [1st Dept 2012][censure for DWAI violation and two DWI misdemeanor convictions, one of which resulted in an admonition, and required to enroll in and complete LAP for one year]; cf. Matter of LaPenta, 67 AD3d at 120 [six-month suspension for two DWI misdemeanor convictions and probation violation; the court noted relapse while on probation, first arrest occurred while on way to court, and second arrest occurred four days after being sentenced to probation for first conviction]; Matter of Clarey, 55 AD3d at 210-211 [one-year suspension for misdemeanor convictions for DWI and leaving the scene of an accident involving personal injury]).

While respondent's lack of candor as to the circumstances surrounding the 2006 arrest is troubling, he attempted to correct his testimony via a post-hearing affirmation. Notably, the Referee and the Hearing Panel, both of whom recommended censure, gave the issue full consideration. Moreover, the Referee and the Panel both noted that there was no evidence that respondent was unfit to practice law nor was there evidence that his actions caused neglect or harm to any client matters. Further, respondent appears to have taken significant steps toward his rehabilitation. Therefore, under the circumstances, respondent's lack of candor is not sufficiently aggravating to warrant an elevated sanction.

(Mike Frisch)

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