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In re Falco

Supreme Court of New York, Second Department

April 26, 2017

In the Matter of Philip M. Falco III, an attorney and counselor-at-law. (Attorney Registration No. 2712081)

         The respondent, Philip M. Falco III, was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on January 10, 1996. The respondent is a resident of Colorado, and was admitted to the State Bar of Colorado on March 31, 1997. By order to show cause dated October 27, 2016, this Court directed the respondent to show cause why discipline should or should not be imposed upon him in this State pursuant to 22 NYCRR 1240.13, based on the misconduct underlying the discipline imposed upon him by an order of the Supreme Court of the State of Colorado dated July 7, 2016. The respondent submitted an affidavit in response, sworn to on December 1, 2016, in which he advances mitigating factors for the Court's consideration as permitted by 22 NYCRR 1240.13(b).

          Mitchell T. Borkowsky, Hauppauge, NY (Nancy B. Gabriel of counsel), for petitioner.

          Philip M. Falco III, Denver, Colorado, respondent pro se.

          PER CURIAM

         By order dated July 7, 2016, the Supreme Court of the State of Colorado suspended the respondent from the practice of law for a period of nine months based upon misconduct that stems from a criminal conviction. On February 3, 2015, in Adams County Court, Colorado, the respondent entered a plea of guilty to the charge of attempted assault in the third degree upon his then wife, a class two misdemeanor. The respondent was sentenced to one year probation and required to pay $1, 474.50 in fines and costs. The conditions of probation required the respondent to: (1) attend weekly 90-minute domestic violence group therapy classes for nine months; (2) attend weekly two-hour anger management classes for nine months; (3) regularly report to his probation officer; and (4) undergo random drug and alcohol EtG (Ethyl Glucuronide) testing. The respondent completed his probation after nine months.

         The Colorado Disciplinary Proceedings

         On November 18, 2015, the Office of Attorney Regulation Counsel filed a complaint against the respondent alleging that he violated Colorado Rules of Professional Conduct rule 8.4(b), which provides that it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects. The respondent, by counsel, filed an answer dated December 15, 2015, admitting that charge. The respondent's conviction and disciplinary case were premised on his assault of his then wife, Amber Falco, on December 1, 2013. "At the time of the assault... Respondent was at home with Ms. Falco and their three children, who were aged one, three, and five. Ms. Falco was twenty weeks pregnant." On December 5, 2013, the respondent filed for a divorce. The parties were divorced by a "[d]issolution... entered on November 4, 2014."

         A disciplinary hearing was held before a hearing board on June 1, 2016, at which Ms. Falco, the respondent, and the responding police officer, Kyle Michieli, testified. The hearing board found that the respondent's testimony was not credible, and noted that "in subtle but numerous ways [he] sought to minimize his own conduct and to malign Ms. Falco" (People v Falco, 2016 WL 4442171, *4, 2016 Colo Discipl LEXIS 89, *12 [Sup Ct, Colo., Case# 15 PDJ101]). Further, "[h]is credibility was... impugned by the false statements he made to [officer] Michieli on the day of the assault and by his refusal to acknowledge those misrepresentations at the disciplinary hearing" (2016 WL 4442171, *4, 2016 Colo Discipl LEXIS 89, *12). Based upon this assessment, the hearing board found by clear and convincing evidence that:

         "Respondent struck Ms. Falco with a closed fist several times. Her concussion and the redness that Michieli observed on Respondent's knuckles make it highly implausible that Respondent hit her with an open hand, as he claims. In addition, the injuries on Ms. Falco's face-not the side of her head-convince us that Respondent hit her while he was pinning her face-up on the bed... Finally, based on several considerations, including Respondent's efforts to minimize his own conduct and to blame Ms. Falco, we find that he has not been rehabilitated from the underlying issues that led to his assault upon Ms. Falco" (2016 WL 4442171, *4, 2016 Colo Discipl LEXIS 89, *12-13).

         In determining an appropriate sanction, the hearing board determined that the respondent committed the assault with a "knowing state of mind, " and that he caused his family "serious physical and emotional injury" (2016 WL 4442171, *5, 2016 Colo Discipl LEXIS 89, *14). In mitigation, the hearing board considered the respondent's lack of disciplinary history, cooperative attitude toward the proceedings, the imposition of other penalties (e.g., one night in jail, paid fines and costs, and probationary conditions). In aggravation, the hearing board noted that the respondent's conduct was a criminal offense, and that he refused to acknowledge the wrongful nature of his conduct and the vulnerability of the victim. While the respondent also argued, among other things, that his "deep remorse" should be considered a factor in mitigation, the hearing board declined to do so, finding that the respondent's claim of remorse was not fully credible (2016 WL 4442171, *8, 2016 Colo Discipl LEIS 89, *21). Upon consideration, the hearing board concluded that:

         "Respondent committed a violent assault on his pregnant wife while his children were present in the family home. That conduct represented a raw assault on the basic individual right to physical security that lies at the core of civilized society' [ Iowa Supreme Court Attorney Disciplinary Bd. v Deremiah, 875 N.W.2d 728, 738 (Sup Ct, Iowa)]. Moreover, the assault ran counter to Respondent's role as a lawyer, since [t]he essence of the conduct of a lawyer is to facilitate the resolution of conflicts without recourse to violence, for law is the alternative to violence' [ In Re Grella 438 Mass. 37, 52, 777 N.E.2d 167, 171]. In this disciplinary case, Respondent has not been fully candid, nor has he given the Hearing Board any confidence that his misconduct will not recur" (2016 WL 4442171, *10, 2016 Colo Discipl LEXIS 89, *29-30].

         Based upon the foregoing, the respondent was suspended from the practice of law in the State of Colorado for a period of nine months, effective August 11, 2016, with the requirement that the respondent petition for reinstatement.

         The New York Proceeding

         In response to this Court's order to show cause dated October, 27, 2016, the respondent submitted an affidavit in which he expresses deep remorse for his "terrible conduct, " and states that he has "tried hard to rectify it to the extent humanly possible." In mitigation, the respondent seeks consideration of the following: that the "incident was an incredibly impulsive and instantaneous act, " but was not "dishonest" or the result of a "selfish motive"; that he has "tried to rectify the consequences of [his] misconduct [toward his] former wife, the victim, and share... joint custody of the children.... [T]he divorce was amicable and was the result of an out-of-court' mediated agreement"; that he completed the conditions of his probation, including attendance at domestic violence group therapy, anger management classes, and random EtG and drug testing (never positive), and met with his probation officer on a monthly basis; that ...

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