New York SUPREME COURT, APPELLATE DIVISION First Judicial Department
May 31, 2012
IN THE MATTER OF KEVIN J. KILDUFF (ADMITTED AS KEVIN JOSEPH KILDUFF), A SUSPENDED ATTORNEY: DEPARTMENTAL DISCIPLINARY COMMITTEE FOR THE FIRST JUDICIAL DEPARTMENT, PETITIONER, KEVIN J. KILDUFF, RESPONDENT.
Matter of Kilduff
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.
Decided on May 31, 2012
Luis A. Gonzalez,Presiding Justice, John W. Sweeny, Jr. Karla Moskowitz Rolando T. Acosta Helen E. Freedman,Justices.
Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department. Respondent, Kevin J. Kilduff, was admitted to the Bar of the State of New York at a Term of the Appellate Division of the Supreme Court for the First Judicial Department on June 16, 1997.
Respondent Kevin J. Kilduff was admitted to the practice of law in the State of New York by the First Judicial Department on June 16, 1997. Respondent maintains a law office in Massachusetts where he was admitted in 1993.
By order of this Court dated February 5, 2008, effective March 6, 2008, respondent was suspended pursuant to Judiciary Law § 468-a for failure to register and pay his biennial registration dues. While respondent made payment for past delinquent periods, he has not moved for reinstatement and is delinquent for the biennial period of 2011/2012.
On or about May 18, 2011, the Supreme Judicial Court of the Commonwealth of Massachusetts for Suffolk County issued an order directing its Board of Bar Overseers to issue an order publicly reprimanding respondent based on professional discipline imposed by the United States Department of the Treasury, Office of Professional Discipline (OPR), which suspended respondent on January 20, 2010 for four years from practicing before the Internal Revenue Service (IRS) for willfully failing to file his personal federal tax return for 2002, and filing late returns for 2000 and 2001, and 2003-2005.
The Departmental Disciplinary Committee is now seeking, pursuant to Judiciary Law § 90(2) and 22 NYCRR 603.3, an order imposing reciprocal discipline, to wit, a public censure or, in the alternative, whatever discipline this Court deems appropriate. Respondent has not appeared or submitted a response in this proceeding.
Respondent is a practicing tax attorney and partner in the Boston based law firm of Nachmias, Morris & Alt. From 1993 to about 1998 respondent was an attorney with the IRS. In May 2008, OPR commenced a proceeding by filing a complaint against respondent for violating 31 CFR § 10.51(a) by committing the above described offenses. Respondent submitted an answer in which he denied most of the substantive allegations and appeared pro se in an administrative hearing. The Administrative Law Judge did not permit respondent to call any witnesses or introduce exhibits because he did not notify the other party by the designated date of his intention to do so. He was permitted to testify in narrative form, and he submitted a brief.
During the proceeding, respondent claimed that he had filed his federal returns for all of the years at issue, although conceding that some returns were late; all his returns were accurate and all taxes owed were paid; the OPR proceeding was initiated by referral from an IRS agent in a contentious case in which respondent had zealously represented a client; and his late filings were attributable to personal demands involving care for his ailing parents.
On November 18, 2008, the ALJ issued an order finding that respondent willfully failed to file his federal tax returns for 2002 and that this constituted "disreputable conduct" under § 10.51 but that the late filings did not violate said provision. The ALJ imposed a 24-month suspension from practicing before the IRS. Both parties appealed and the IRS Appellate Authority determined that both respondent's non-filing and late filings violated § 10.51 and imposed a 48-month suspension.
In June 2010, the Massachusetts Bar Counsel filed a petition for reciprocal discipline to the Massachusetts Supreme Judicial Counsel for Suffolk County seeking a four month suspension. The court determined that since respondent was not charged with or convicted of a criminal offense, his conduct did not violate Mass. R. Prof. C. 8.4(b), as the Bar Counsel had charged. The court determined that respondent's willful failure to file his 2002 return violated Mass. R. Prof. C. 8.4(h) and directed the Board of Bar Overseers to issue a public reprimand.
Despite respondent's failure to respond in this proceeding, it appears that none of the defenses to reciprocal discipline enumerated in 22 NYCRR 603.3[c], to wit: (1) lack of notice and opportunity to be heard in the foreign jurisdiction; (2)infirmity of proof establishing the misconduct; or (3) the misconduct in the foreign jurisdiction does not constitute misconduct in New York, would be available.
Respondent was afforded due process in the Massachusetts proceeding and submitted an answer and memorandum in opposition to the Bar Counsel's petition. The record of the OPR proceeding establishes that respondent failed to file his federal income tax returns for 2002. Violation of Mass. R. Prof. C. 8.4(h) contains equivalent language to that found in DR 1-102(A)(7)(now Rule 8.4[h]).
Consistent with the principle generally accepted by this Court, we accord significant weight to the sanction imposed by the jurisdiction in which the misconduct occurred (see Matter of Rogge, 51 AD3d 367 ; Matter of Power, 3 AD3d 21 ). Moreover, we have imposed public censure for similar conduct (see Matter of Clark, 60 AD3d 159 ).
Accordingly, the Committee's petition should be granted and respondent publicly censured. All concur. Order filed [May 31, 2012]. Gonzalez,P.J., Sweeny, Moskowitz, Acosta, and Freedman, JJ.
Respondent publicly censured.
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