Silver Sharings Playbook

A public censure from the New York Appellate Division for the First Judicial Department

The Attorney Grievance Committee commenced this disciplinary proceeding by a petition of charges (Judiciary Law § 90 [2], Rules for Attorney Discipline Matters [22 NYCRR] § 1240.8]), alleging that respondent was guilty of certain professional misconduct in violation of former Disciplinary Rules (DR 1-102 [a] [7]; 2-107 [a] [1] and [2]) and the current New York Rules of Professional Conduct (RCP)(22 NYCRR 1200.0) rules 1.5 (g) (1) and (2); and 8.4 (h), arising from his failure to disclose to two clients that he was sharing legal fees with former New York State Assembly Speaker Sheldon Silver.

The parties agree on the stipulated facts, including the admission to acts of professional misconduct and the relevant factors in mitigation, as well as on the discipline. The parties now jointly move pursuant to 22 NYCRR 1240.8(a) (5) for discipline on consent and request the imposition of a public censure (22 NYCRR 1240.8 [a] [5] [i-ii]).

The parties assert that the appropriate discipline to be imposed on respondent should be a public censure (see e.g. Matter of Athari (93 AD3d 153 [4th Dept 2012]; Matter of Kuslansky (230 AD2d 104 [2d Dept 1997]; Matter of Colleluori, __ AD3d __, 2018 NY Slip Op 05588 [2d Dept 2018]). In addition, the parties maintain that respondent’s misconduct is distinguishable from Matter of Lodes (118 AD3d 54 [2d Dept 2014]) and Matter of Harrison (282 AD2d 176 [2d Dept 2001]) because both matters involved more aggravated misconduct than in this case.

Lastly, the parties contend that a public censure is supported by sections 7.3, 9.31, and 9.32(a)-(e) of the ABA Standards for Imposing Lawyer Sanctions.

In light of respondent’s admitted misconduct which was limited to violations of the fee sharing rules, the lack of aggravation, the mitigating factors presented, and the relevant case law, the parties’ joint motion for discipline by consent should be granted and respondent is censured. The Committee’s petition of charges is denied as moot.

(Mike Frisch)