Less Than Disbarment
An indefinite suspension – rather than disbarment – has been imposed by the New York Appellate Division for the Third Judicial Department as reciprocal discipline for sanction oredered in Florida and New Jersey
Respondent was admitted to practice by this Court in 1982, following his 1973 admission in both Florida and New Jersey. In January 2019, the Supreme Court of Florida accepted respondent’s disciplinary revocation following allegations that he failed to provide a client with an accounting of funds held on behalf of the client. The Supreme Court of New Jersey thereafter permanently disbarred respondent, upon his consent and upon his admission that he had knowingly misappropriated more than $30,000 while serving as the escrow agent in a real estate transaction. The Attorney Grievance Committee for the Third Judicial Department (hereinafter AGC) now moves, by motion initially marked returnable April 22, 2024, but adjourned upon respondent’s request to May 28, 2024, to impose discipline in this state as a result of respondent’s disciplinary revocation in Florida and disbarment in New Jersey (see Rules for Atty Disciplinary Matters [22 NYCRR] § 1240.13; Rules of App Div, 3d Dept [22 NYCRR] § 806.13). Respondent has been heard in response to AGC’s motion, AGC was heard in reply, and the parties were heard at oral argument.
Factors
we have previously and continuously held that the submission of a disciplinary resignation in another state is tantamount to disciplinary resignation in this state pursuant to this Court’s rules, inasmuch as an attorney seeking resignation in this jurisdiction while disciplinary charges are pending would result in the attorney’s disbarment (see e.g. Matter of McCullough, 213 AD3d at 1138; Matter of Bialobrzeski, 155 AD3d 1427, 1428 [3d Dept 2017]; Matter of Vega, 147 AD3d 1196, 1198 [3d Dept 2017]; Matter of Calisi, 119 AD3d at 1317; Rules for Atty Disciplinary Matters [22 NYCRR] § 1240.10). We also take note of the various aggravating factors cited by AGC, including respondent’s selfish or dishonest motive in knowingly misappropriating client funds (see ABA Standards for Imposing Lawyer Sanctions standard 9.22 [b]); his intentional failure to cooperate with the subpoena in Florida (see ABA Standards for Imposing Lawyer Sanctions standard 9.22 [e]); and his substantial experience in the practice of law (see ABA Standards for Imposing Lawyer Sanctions standard 9.22 [i]), as well as the mitigating factors cited by respondent, including his efforts to serve his community (see ABA Standards for Imposing Lawyer Sanctions standard 9.32 [g]); a lack of disciplinary history (see ABA Standards for Imposing Lawyer Sanctions standard 9.32 [a]); and the discipline imposed in New Jersey and Florida
Disposition
Given the totality of the circumstances, and in order to protect the public, maintain the honor and integrity of the profession, and deter others from committing similar misconduct, we suspend respondent from the practice of law indefinitely, and condition any future application for reinstatement in this state upon proof that he has been reinstated to the practice of law in Florida.
Clark, Aarons and Mackey, JJ., concur. Egan Jr., J.P., and Ceresia, J., concur in part and dissent in part, and would grant the motion of the Attorney Grievance Committee for the Third Judicial Department and disbar respondent.