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In re Howley (N.Y.App.Div. 12/17/2009)

December 17, 2009


Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department. Respondent, John J.P. Howley, was admitted to the Bar of the State of New York at a Term of the Appellate Division of the Supreme Court for the Second Judicial Department on January 17, 1990.

Per curiam.

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.

Richard T. Andrias, Justice Presiding, John W. Sweeny, Jr., Eugene Nardelli, Leland G. DeGrasse, Helen E. Freedman, Justices.

M3707, M4663

M-3707 -- September 8, 2009

M-4663 -- October 13, 2009

Respondent John J. P. Howley was admitted to the practice of law in the State of New York by the Second Judicial Department on January 17, 1990. At all times relevant to this proceeding, he has maintained an office for the practice of law within the First Department.

On February 4 2008, respondent pleaded guilty in Albany City Court to one count of failing to file a New York State tax return for the taxable year 2003 in violation of New York State Tax Law § 1801(a), a class A misdemeanor, and was sentenced to a conditional discharge and ordered to pay a $10,000 fine. Respondent's plea was entered pursuant to a plea agreement dated January 18, 2008 with the New York County District Attorney's Office, and in full satisfaction of an investigation into his failure to timely file New York non-resident personal income tax returns for the tax years 1994 through 2006, and for failure to pay all the taxes owed in the tax years 1997, 1998, 2001, 2002 and 2003.

By unpublished ordered entered January 28, 2009, we deemed the offense of which respondent was convicted to be a "serious crime" pursuant to Judiciary Law § 90(4)(d) and directed a Hearing Panel to conduct a hearing and recommend an appropriate sanction.

The Hearing Panel conducted a hearing and respondent, represented by counsel, respondent's wife, and several character witnesses, including two of his former law partners testified on his behalf. Witnesses testified that respondent devoted thousands of hours to pro bono activities on behalf of his firm representing death row defendants and, as a Trustee, gave a great deal of time to and made substantial financial contributions to Skidmore College, his alma mater. Respondent also submitted a letter from a psychiatrist stating that respondent suffered from "an Obsessive Compulsive Personality Disorder", that caused him to attend to his work compulsively, but caused him to be careless about various personal matters, including those relating to health and finances.

The Hearing Panel found that respondent failed to file tax returns or pay New York State non-resident taxes for a period of over ten years and failed to file or pay federal taxes and New Jersey resident taxes for at least nine years. From the time respondent became a partner at his former law firm and was no longer subject to tax withholding, he failed to make any quarterly estimated tax payments or file forms, despite his annual receipt of K-1 statements and written notice from the firm regarding his quarterly tax obligations, and despite having been provided with the information needed to make necessary calculations. Until he learned of the criminal investigation, he made no effort to file or pay income taxes. Moreover, in response to her question, he told his wife that he was taking care of their taxes.

Respondent has now filed all of his back tax returns, paid the $10,000 fine and paid all New York State taxes, interest, and penalties. Although he executed an agreement with the Internal Revenue Service, to whom he owed over $2.4 million, to make monthly payments, he was unable to make a timely million dollar payment because sale of his home was delayed as a result of market conditions.

The Hearing Panel recommended a suspension of six months, and the Departmental Disciplinary Committee seeks and order pursuant to 22 NYCRR 603.(d) and 605.15(e)(2) confirming the findings of fact and conclusions of law of the Hearing Panel and suspending respondent for a period of six months. Respondent cross moves for ...

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