DISCIPLINARY proceeding instituted by the Grievance Committee for the Ninth Judicial District. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on July 29, 1981, under the name Daniel David Tartaglia. By decision and order on motion of this Court dated April 15, 2008, as amended by decision and order on motion dated May 2, 2008, the Court, on its own motion, suspended the respondent as a result of his conviction of a serious crime, pursuant to Judiciary law § 90(4)(f), authorized the Grievance Committee to institute and prosecute a disciplinary proceeding against him, and referred the issues raised to the Honorable William D. Friedmann, as Special Referee to hear and report.
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, REINALDO E. RIVERA, ROBERT A. SPOLZINO & RUTH C. BALKIN, JJ.
The Grievance Committee for the Ninth Judicial District (hereinafter the Grievance Committee) served the respondent with a petition containing two charges of professional misconduct. After a preliminary conference and a hearing before Special Referee William D. Friedmann, at which a stipulation admitting the factual evidence was submitted by the parties, both charges were sustained. The Grievance Committee now moves to confirm the Special Referee's report and to impose such discipline as the Court may deem just and proper. The respondent does not oppose the conclusion of the Special Referee that the charges have been sustained by a fair preponderance of the credible evidence, but requests that any sanction take into consideration the mitigation offered by him at the hearing.
Charge one alleges that the respondent has been convicted of a serious crime within the meaning of Judiciary law § 90(4)(d) and 22 NYCRR 691.7(b), and has thereby engaged in illegal conduct that reflects adversely on his honesty, trustworthiness, or fitness as a lawyer, in violation of 22 NYCRR 1200.3(a)(3) [Code of Professional Responsibility DR 1-102(a)(3)].
On January 29, 2008, the respondent entered a plea of guilty to a single count of failure to file a New York State tax return, a class A misdemeanor, in violation of Tax Law § 1801(a), in satisfaction of felony charges alleged in Westchester County Superior Court Information 0833/2007. The respondent has thereby been convicted of a serious crime.
Charge two alleges that the respondent has engaged in conduct prejudicial to the administration of justice, in violation of 22 NYCRR 1200.3(a)(5) [Code of Professional Responsibility DR-102(a)(5)], based on the allegations of charge one.
Based on the admissions set forth in the respondent's answer and the stipulation, the Special Referee properly sustained both charges and the Grievance Committee's motion to confirm the Special Referee's report is granted.
In determining an appropriate measure of discipline to impose, the Grievance Committee has submitted copies of the March 16, 1987, admonition issued to the respondent for neglect and misrepresentation of the status of an appeal, as well as Letters of Caution dated April 10, 1989 (neglect of three assigned counsel matters), June 28, 1995 (failure to cooperate with the Grievance Committee and failure to pay the biennial registration fee), and March 28, 1997 (for failing to notify the Office of Court Administration of his change of office address).
The respondent asks that the Court consider the numerous letters on his behalf from members of the community attesting to his good character, as well as his cooperation with the Grievance Committee, the absence of any personal gain or any loss to any client, and his ultimate payment of his tax liability. The respondent further asks the Court to take into consideration that the conduct resulting in his criminal conviction was a result of his underlying mental illness and that he is presently in therapy and is receiving medication to deal with those issues.
While the Grievance Committee does not explicitly challenge the opinions of the respondent's medical expert, it notes that the respondent's so-called "avoidance behavior" was demonstrated only with regard to his obligations to file tax returns and pay his taxes.
The respondent is suspended for a period of one year, with credit for the time elapsed under his interim suspension, and is granted leave to apply for reinstatement immediately. PRUDENTI, P.J., ...