Reinstatement Petition Results In Disbarment
A petitioner who had sought reinstatement from a six-month and until further order suspension was instead disbarred by the New York Appellate Division for the First Judicial Department
The original suspension
petitioner was convicted, upon his plea of guilty, in Criminal Court, New York County, of promoting prison contraband in the second degree, a class A misdemeanor, in violation of Penal Law § 205.20(1). That same day he was sentenced to a one-year conditional discharge and required to continue monthly sessions with his psychiatrist for one year. His conviction stemmed from his giving a criminal client, who was incarcerated and awaiting trial, a cigarette pack provided by a third party during an April 23, 2019 visit with the client at the Manhattan Detention Complex. The client was later found to be in possession of 18 cigarettes, loose marijuana, and a scalpel blade. Petitioner’s plea allocution contained no statement that he was aware that the cigarette pack contained marijuana and a blade.
Post-suspension issues
Petitioner originally submitted an affidavit which does not follow the format of Appendix D of 22 NYCRR 1240.16. Instead of completing the 16 required passages, he simply attests that, inter alia, “[d]uring [the] period of suspension [he] refrained from the practice of law in any form pursuant to the provisions of Judiciary Law secs. 478, 479, 484 and 486”; and that he “complied with all the provisions of NYCRR sec 1240.15 but for sec. (g) (filing the Affidavit of Compliance), a requirement of which [he] was unaware.” Petitioner has now filed a belated affidavit of compliance, sworn to July 25, [*2]2022, which conforms to the format of Appendix B of 22 NYCRR 1240.16, in which he again attests that “[s]ince the entry of the order of discipline, [he has] complied with the order of discipline [in] all respects”; and that he has “also complied with Judiciary Law secs. 478, 479, 484 and 486.”
The AGC opposes petitioner’s reinstatement and requests that he be summarily disbarred for engaging in the unauthorized practice of law while suspended. On November 4, 2021, the AGC served petitioner with notice of entry of this Court’s suspension order and decision. Pursuant to Judiciary Law §90(2), this Court’s November 4, 2021 suspension order directed petitioner to, inter alia, “desist and refrain from the practice of law in any form, either as principal or agent, clerk or employee of another; that [petitioner] is forbidden to appear as an attorney or counselor-[at-]law before any court, judge, justice, board, commission or other public authority; and that [petitioner] is forbidden to give to another an opinion as to the law or its application or any advice in relation thereto” (200 AD3d at 66).
Notwithstanding his suspension, the AGC alleges that petitioner appeared as counsel for defendants in two unrelated criminal matters. First, the AGC includes a transcript evidencing that on June 17, 2022, petitioner appeared at an arraignment in Criminal Court, Bronx County on behalf of the defendant J.G. Petitioner stated before the court: “Justin Levine, 191 E 161st Street, Bronx, on behalf of the defendant.” Petitioner requested that the court schedule the next appearance for August 4, 2022.
The court
Petitioner, who does not dispute the AGC’s factual allegations, opposes the cross motion and again requests that his reinstatement motion be granted. Notably, petitioner does not address the prior false statements he made in his reinstatement affidavit and affidavit of compliance.
The AGC has presented uncontroverted evidence that petitioner, while suspended, appeared as counsel for the defendants in two separate criminal matters in clear violation of Judiciary Law §§ 478, 479, 484, and 486, 22 NYCRR 1240.15(a), and our order of suspension, for which he should be summarily disbarred (see e.g. [*4]Matter of Thomas, 162 AD3d 1 [1st Dept 2018]; Matter of Sampson, 145 AD3d 95 [1st Dept 2016]; Matter of Streit, 89 AD3d 190 [1st Dept 2011]; Matter of Veski, 42 AD3d 122 [1st Dept 2007]; Matter of Brown, 31 AD3d 46 [1st Dept 2006]).
Accordingly, the petitioner’s motion should be denied, the AGC’s cross motion should be granted, and petitioner is disbarred from the practice of law and his name stricken from the roll of attorneys and counselors-at-law in the State of New York, effective immediately.
(Mike Frisch)