In the Matter of Judith Dillon Segreti, an attorney and counselor-at-law: Departmental Disciplinary Committee for the First Judicial Department, Petitioner, Judith Dillon Segreti, Respondent.
Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department. Respondent, Judith Dillon Segreti, 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 February 14, 1972.
Jorge Dopico, Chief Counsel, Departmental Disciplinary Committee, New York (Naomi F. Goldstein, of counsel), for petitioner.
Sarah Diane McShea, for respondent.
David Friedman, Justice Presiding, David B. Saxe Dianne T. Renwick Leland G. DeGrasse Helen E. Freedman, Justices.
Respondent Judith Dillon Segreti was admitted to the practice of law in the State of New York by the First Judicial Department on February 14, 1972. At all times relevant to this proceeding, respondent has maintained an office for the practice of law within the First Judicial Department.
Respondent, who is under investigation by petitioner the Departmental Disciplinary Committee for alleged misconduct, contends that she cannot adequately defend herself before the Committee because of "mental and physical incapacity." She moves pursuant to the Rules of the Appellate Division, First Department (22 NYCRR) § 603.16(c)(1) for an order suspending her from the practice of law based on her incapacity, staying the Committee's investigation sine die, and quashing the judicial subpoena previously issued by this Court, which directed respondent to testify before the Committee at a deposition. The Committee objects to suspending respondent for her alleged incapacity, and, by cross motion, seeks an order instead suspending her "based on uncontested evidence of misconduct" that "immediately [threatens] the public interest" (see Rules of App Div, 1st Dept [22 NYCRR] § 603.4[e][iii]). In the alternative, the Committee requests that this Court direct an evaluation of respondent's alleged infirmities.
In or about March 2011, the Committee commenced an investigation of respondent after her law firm reported her for alleged misconduct. Also, proceedings were commenced in both Surrogate's Court and Supreme Court that involved the misconduct allegations against respondent.
In April 2012, after the Committee served respondent with a subpoena to appear but before her scheduled appearance, she filed the instant motion, by which she claims that she is physically and mentally unable to defend herself before the Committee and seeks suspension based on incapacity. Respondent states that she stopped practicing law in October 2010 and formally retired in March 2011, by which time her health problems prevented her from practicing. In support of her disability claim, respondent submits a letter from her psychiatrist stating that she suffers from severe anxiety and depression that renders her unfit to assist in her defense in the Committee proceeding and incapable of practicing law "now or, likely, in the future." Respondent also submits a letter from her internist stating she has a number of medical problems, most significantly a history of subarachnoid bleeding caused by "poorly controlled" hypertension, and that requiring her appearance before the Committee "would potentially" create additional health problems.
In opposition to respondent's motion, the Committee contends that the timing of the application suggests that respondent wishes to avoid disciplinary proceedings that may lead to her disbarment and publication of her misconduct. The Committee further argues that respondent's disability claim is belied by her competent performance as a fiduciary in various matters between June 2011 and April 2012 and by her participation in the ongoing court proceedings that involve her alleged misconduct.
The Committee does not oppose respondent's immediate suspension, but in its cross motion asserts that respondent should be suspended for misconduct. The Committee claims that it has uncontested evidence establishing that in 2002 respondent misappropriated about $30, 000 from a client's custodial account and used the money to cover expenses in an unrelated estate matter. The Committee also contends that respondent does not contest that, in connection with an estate matter, she falsely notarized the signature of two individuals who were already deceased and filed the document with the New York County Surrogate's Court.
Subdivision (c)(1) of the Rules of the Appellate Division, First Department (22 NYCRR) § 603.16 provides that if the respondent in an ongoing disciplinary proceeding claims to be suffering from "a disability by reasons of physical or mental infirmity or illness" which makes self-defense impossible, this Court "shall" suspend the respondent from practicing law "until a determination of the respondent's capacity to continue the practice of law is made in a proceeding instituted in accordance with the provisions of [Rules of App Div, 1st Dept (22 NYCRR) § 603.16(b)]". Subdivision (b), which applies to petitions by the Committee to this Court "to determine whether an attorney is incapacitated from continuing to practice law by reason of physical or mental infirmity or illness, " provides that this Court may take or direct any action deemed necessary or proper to determine whether the attorney is incapacitated. Upon determining incapacity, this Court shall suspend the attorney indefinitely and until our further order, and "any pending disciplinary hearings against the attorney shall be held in abeyance."
Here, respondent's contention that her medical disability prevents her from adequately defending herself in proceedings before the Committee requires her immediate suspension from the practice of law pursuant to the Rules of the Appellate Division, First Department (22 NYCRR) § 603.16(c)(1), and accordingly the branch of the motion which seeks suspension is granted. However, the branches seeking an order staying the Committee's investigation and quashing the subpoena served upon respondent are held in abeyance pending a determination whether she can defend herself.
While the medical evidence that respondent submitted constitutes some evidence of her general incapacity, it does not conclusively demonstrate that she is incapable of defending herself in that she has continued to work as a fiduciary. For that ...