Upward Departure
A public reprimand from the United States Court of Appeals for the Second Circuit was ratcheted up to a six-month suspension by the New York Appellate Division for the First Judicial Department
By July 18, 2023 order, the United States Court of Appeals for the Second Circuit publicly reprimanded respondent for misconduct before that court. Specifically, respondent was disciplined for failing to proceed with representation by ceasing work without permission from the court, providing inappropriate responses or failing to respond to court orders, assigning responsibility to respond to court orders to another attorney without authority to do so, failing to file required status reports, and failing to remedy defective responses to court orders.
Position of the Attorney Grievance Commission
The AGC seeks an upward departure in this matter, noting that the Second Circuit limited its discipline to a public reprimand because respondent is not a member of that bar. In seeking a six-month suspension, the AGC argues that respondent was publicly censured by this Court in 2021 and has been admonished four times. Moreover, the AGC refers to the Second Circuit’s finding that respondent continued his misconduct after being warned of potential sanctions and failed to acknowledge that his conduct was inappropriate. The Committee also notes that respondent failed to advise the AGC of the discipline imposed by the Second Circuit as required by 22 NYCRR 1240.13(d), which has been found by this Court to be an aggravating factor.
Respondent opposed any sanction
To that end, respondent argues not only that there is no claim of unethical conduct made by his client, but that his client was not caused any harm. In fact, respondent submitted a letter from his client, in which his client opposes the instant motion and states,
“I see no basis for disciplining Mr. DeMaio.” The client continues, “I do not understand why the Second Circuit with all its resources had to depend on the non-bankruptcy attorney for the bankruptcy status and I clearly believe the response by the Second Circuit to be excessive and the request for the suspension by the Committee to be even more excessive. Since the Bankruptcy information was online and easily obtainable I believe the Second Circuit was more concerned with complete deference toward it rather than any perceived lack of ethics by Mr. DeMaio.”
With respect to sanction and his prior discipline, respondent states that, “while not minimizing” his prior discipline, his misconduct occurred over the course of a 46year career with an active general practice. Respondent provided multiple character letters attesting to respondent’s character, which he states should be considered in mitigation. Respondent also asserts that, although the Second Circuit did not cite lack of remorse as a factor in aggravation, the AGC made reference to same in its moving papers. As such, respondent “penned and submitted an open letter to the Second Circuit,” in which he stated, “I deeply regret not having been more timely and more complete in my responses . . . I fully recognize that this has caused the Court to expend unnecessary time and effort on This Matter.” Lastly, respondent argues that any suspension would be tantamount to disbarment due to respondent’s advanced age. While he has “no plans to retire or even slow down,” even a short suspension would “terminate my career” because clients would seek other representation. Further, respondent argues that his future earning capacity would be harmed because potential clients would Google his background online.
The court
With respect to the RPC violations, respondent’s conduct as discussed in the Second Circuit’s order clearly violates rules 3.4(c), and 8.4(d) of the RPC. Rule 3.4(c) prohibits attorneys from disregarding the ruling of tribunals. Rule 8.4(d) prohibits an attorney from engaging in conduct that is prejudicial to the administration of justice. Respondent violated both rules by repeatedly and willfully failing to appropriately respond to the Second Circuit’s orders despite several requests and warnings that his failure to do so may have negative consequences.
Upward departure
Although the Second Circuit imposed public reprimand, an upward departure to a six-month suspension sought by the AGC is the appropriate discipline in this matter. The AGC correctly notes that in addition to the aggravating factors considered by the Second Circuit, respondent failed to notify this Court or the AGC that he had been disciplined by the Second Circuit as required by 22 NYCRR 1240.13(d). Further, respondent’s attitude towards such an oversight was dismissive, claiming that he did not report his discipline because the Second Circuit reported it first. Respondent does not acknowledge that the reporting requirement is his alone, regardless of whether the foreign jurisdiction also reports the discipline. Although respondent has had a lengthy career, it is not untarnished and, as such, respondent’s claim that a short suspension is tantamount to disbarment fails. Respondent claims that future clients will look him up and see that he has been disciplined. In making such a claim, respondent apparently forgets that this Court, as well as the Second Circuit, have already publicly disciplined him.
An upward departure is appropriate in this matter. First, the Second Circuit limited its discipline to a public reprimand because respondent was not a member of the bar of that jurisdiction. The order imposing discipline, however, noted that a suspension would have been warranted had he been admitted to the Second Circuit.
(Mike Frisch)