Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
A. GAIL PRUDENTI, P.J., WILLIAM F. MASTRO, ROBERT A. SPOLZINO, PETER B. SKELOS, STEVEN W. FISHER, JJ.
Application by the petitioner, Grievance Committee for the Second and Eleventh Judicial Districts, pursuant to 22 NYCRR 691.3, to impose discipline upon the respondent based on disciplinary action taken him in the State of Montana. By decision and order on motion dated November 19, 2007, this Court: (1) granted the respondent's motion for leave to reargue and, upon reargument, recalled and vacated an opinion and order of this Court dated May 1, 2007, which publicly censured the respondent based on a public censure imposed by order of the Supreme Court of Montana dated July 19, 2006, (2) held in abeyance the petitioner's application to impose reciprocal discipline pending a hearing pursuant to 22 NYCRR 691.3(d), and (3) directed that the hearing be conducted before the Honorable James A. Gowan The respondent was admitted to the Bar in the State of New York at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on February 27, 1985.
The respondent was publicly censured by order of the Supreme Court of Montana dated July 19, 2006, based on violations of Rules 8.5, 8.1(b), and 3.3(d) of the Montana Rules of Professional Conduct. On May 8, 2006, the respondent tendered a conditional admission and affidavit of consent in the Montana proceeding in which he admitted several violations.
The Grievance Committee for the Second and Eleventh Judicial Districts (hereinafter the Grievance Committee) served the respondent with a notice pursuant to 22 NYCRR 691.3, informing him of his right, within 20 days, to file a verified statement setting forth any of the defenses to the imposition of reciprocal discipline as enumerated in 22 NYCRR 691.3(c) and to demand a hearing at which consideration would be given to any defense enumerated. In view of the respondent's failure to file a statement with the Court or demand a hearing, the Court found no impediment to the imposition of reciprocal discipline and publicly censured the respondent by opinion and order dated May 1, 2007.
In his motion for leave to reargue, the respondent maintained that he had submitted a verified answer raising all three of the enumerated defenses. However, the respondent's submission was made to the Grievance Committee but was never filed with the Court. The respondent further maintained that the Court's opinion and order dated May 1, 2007, was based on erroneous information. He asserted that the five allegations of professional misconduct cited in the opinion emanate from the complaint before the Commission on Practice of the Supreme Court of Montana, which was before this Court on the Grievance Committee's application for the imposition of reciprocal discipline. However, the order of the Supreme Court of Montana is predicated solely on a violation of Rules 8.5, 8.1(b), and 3.3(d). The Court granted the respondent's motion for leave to reargue and, upon reargument, recalled and vacated the opinion and order publicly censuring him in order to afford him an opportunity to clarify the issue and view the precise scope of his admissions, notwithstanding his failure to demand a hearing.
Pursuant to this Court's order made upon reargument, recalling and vacating the opinion of May 1, 2007, and holding in abeyance the Grievance Committee's application for the imposition of reciprocal discipline pending a hearing, this matter was heard on December 26, 2007, before the Honorable James A. Gowan. Based upon the hearing and the evidence adduced, Special Referee Gowan determined that the evidence did not establish that the procedure in the foreign jurisdiction was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process in the State of Montana. Nor was there an infirmity of proof establishing the respondent's professional misconduct by the Supreme Court of Montana. With respect to the third defense, that the imposition of reciprocal discipline would be unjust, the Special Referee left that determination to the Court.
The Grievance Committee now moves to confirm the report of the Special Referee and to impose reciprocal discipline as the Court deems appropriate. The respondent cross-moves to partially confirm the report of the Special Referee but affirming his defense that the imposition of reciprocal discipline would be unjust under the circumstances.
At the hearing, the respondent testified that, upon his lawyer's advice that he would "never . . . do better," he admitted violations of three of the Montana Rules of Professional Conduct. The matter ultimately was resolved by stipulation in the form of the respondent's Tendered Conditional Admission and Affidavit of Consent.
When questioned by the Special Referee, the respondent conceded that he did not attempt to challenge the constitutionality of the proceeding in federal District Court in Montana upon the advice of his lawyer that any such challenge would be unsuccessful.
The respondent testified with respect to the factual underpinnings of his admissions. In relation to Rule 8.5, the "pro hac vice" rule, the respondent admitted that he had not signed the required form for attorneys who seek to practice in Montana pro hac vice by motion or before otherwise being admitted in that state, whereby they agree to be bound by the rules of professional conduct and to be subject to the disciplinary authority of that state. In response to the Special Referee's inquiry, the respondent acknowledged that paragraph 8 of his stipulation constituted an admission and a finding.
With regard to Rule 8.1(b), which calls for disclosure of facts to correct a misapprehension, the respondent ...