Failure To Disclose Arrest Draws Censure

The New York Appellate Division for the Third Judicial Department has censured an attorney who had failed to disclose an arrest four days before admission.

Respondent was admitted to practice by this Court in June 2014 and resides in Pennsylvania. In September 2019, respondent advised this Court’s Office of Attorney Admissions for the first time that, while his application for admission had been pending before this Court in 2014 and four days before he was admitted to practice in this state, he was arrested and charged with disorderly conduct following his involvement in an altercation in New Jersey.

Bar charges were filed.

Risk of omission

Practically speaking, an assessment of an applicant’s character and fitness may only take place following the filing of an application for admission (see Rules of App Div, 3d Dept [22 NYCRR] § 805.1 [c]), thus making the period between submission of an application for admission and the administration of the oath of office a critical time for this Court’s Committees on Character and Fitness to assess an applicant’s candidacy and fitness for admission. In recognition of the paramount role ascribed to absolute candor and truthfulness in the bar admission process – and in the practice of law generally – the Legislature has explicitly authorized the unique disciplinary penalty of license revocation in situations where, as here, an applicant for admission makes “any misrepresentation or suppression of any information in connection with the application for admission to practice” (Judiciary Law § 90 [2]), and this Court has regularly and consistently imposed that sanction where an applicant has demonstrated a lack of candor in the bar admission process

But here

We have reviewed the parties’ submissions and arguments as to penalty. The record reflects that, four days before he was admitted to practice in this state in June 2014, respondent was arrested in New Jersey. However, respondent did not disclose this arrest to New York authorities until 2019 following his participation in another jurisdiction’s character and fitness evaluation process, and despite the fact that he disclosed three prior interactions with law enforcement when his application for admission in this state was submitted to this Court for consideration. We accept respondent’s arguments that his failure to amend his admission application or otherwise disclose the arrest prior to his admission resulted from a failure to appreciate his continuing obligation to disclose same up until his admission to the bar. However, we caution that even a careless mistake in failing to make required disclosures in the admission process – as opposed to a failure based on a deceptive or fraudulent motive – warrants the need for a public disciplinary sanction (see Matter of Olivarius, 94 AD3d at 1225; see also Matter of Canino, 10 AD3d 194, 195-196 [2d Dept 2004]). Moreover, we have also considered petitioner’s concerns that respondent’s lack of candor in disclosing the arrest prior to his admission deprived the Committees on Character and Fitness the opportunity to consider the full scope of his conduct in assessing his character and fitness for admission in New York (see Matter of Olivarius, 94 AD3d at 1225; Rules of App Div, 3d Dept [22 NYCRR] § 805.1)

The court imposed a censure. (Mike Frisch)