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In re Gahwyler

Supreme Court of New York, Second Department

May 10, 2017

In the Matter of William E. Gahwyler, Jr., a suspended attorney. Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, petitioner; William E. Gahwyler, Jr., respondent. (Attorney Registration No. 2401917)

         APPLICATION by the petitioner, Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, pursuant to former 22 NYCRR 691.3, to impose discipline on the respondent based upon disciplinary action taken against him by the Supreme Court of New Jersey. The respondent was admitted to the Bar in the State of New York at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on May 29, 1991.

         By opinion and order of this Court dated April 2, 2014, the respondent was suspended from the practice of law for one year, commencing May 2, 2014, based on prior disciplinary action taken against him by the Supreme Court of New Jersey in 2011 and 2013 (see Matter of Gahwyler, 117 A.D.3d 50). The respondent has not sought reinstatement and remains suspended.

          Diana Maxfield Kearse, Brooklyn, NY (Thomas Graham Amon of counsel), for petitioner.

          RANDALL T. ENG, P.J. WILLIAM F. MASTRO REINALDO E. RIVERA MARK C. DILLON RUTH C. BALKIN, JJ.

          OPINION & ORDER

          PER CURIAM.

         By order filed June 15, 2016, the Supreme Court of New Jersey disbarred the respondent, on certifications of default filed by the Office of Attorney Ethics (hereinafter OAE) with regard to four disciplinary matters (Docket Nos. DRB 15-206, DRB 15-274, DRB 15-307, and DRB 15-347), for violation of New Jersey Rules of Professional Conduct (hereinafter RPC) rule 1.15(a) (misappropriation of trust account funds). The order was predicated on a decision dated April 12, 2016, by the Disciplinary Review Board (hereinafter DRB) of the Supreme Court of New Jersey.

         The facts as disclosed in the DRB's decision can be summarized as follows:

         The respondent was admitted to the New Jersey Bar in 1990, and had a disciplinary history consisting of: (1) a "strong censure" in 2011 for a conflict of interest in a real estate transaction, misrepresentations made on closing documents, and a failure to set forth in writing the basis of his fee; (2) a one-year suspension from the practice of law in 2013, effective February 22, 2013, again for a conflict of interest in a real estate transaction and dishonesty and misrepresentations made in connection with closing documents, and for taking an excessive fee (see In re Gahwyler, 212 N.J. 556, 58 A.3d 727); and (3) a censure in 2014, in a default matter, for recordkeeping violations and failure to cooperate with disciplinary authorities (see In re Gahwyler, 217 N.J. 218, 86 A.3d 130).

         Thereafter, the respondent defaulted in four separate New Jersey disciplinary matters: Docket Nos. DRB 15-206, DRB 15-274, DRB 15-307, and DRB 15-347.

         Docket No. DRB 15-274 (XIV-2013-0456E)

         This matter arose out of the respondent's failure to file the required affidavit of compliance pursuant to New Jersey Rules of Court rule 1:20-20, following his one-year suspension in 2013. This rule requires a suspended attorney, within 30 days of the date of the order of suspension, to file an affidavit of compliance. On August 5, 2015, the OAE certified this matter as a default when the respondent did not answer the complaint, reply to any of the letters sent to him requesting an answer to the complaint, or file the required affidavit. The DRB found, based on the foregoing, that the respondent's failure to file the affidavit constituted violations of RPC rules 8.1(b) (failure to cooperate with disciplinary authorities) and 8.4(d) (conduct prejudicial to the administration of justice).

          Docket No. DRB 15-206 (XIV-2014-0192E, XIV-2014-0241E, and XIV-2014-0256E)

         This matter arose out of the respondent's handling of three client matters while he was suspended from the practice of law. On March 12, 2015, the OAE sent a formal ethics complaint to the respondent, by regular and certified mail. On April 15, 2015, at an appearance for a demand interview with the OAE (for reasons not disclosed in the certification of the record), the respondent was personally handed a second letter directing him to file an answer to the complaint within five days, and advising him that if he failed to do so, the allegations in the complaint would be deemed admitted. As of June 3, 2015, the respondent had not filed an answer to the complaint. Accordingly, on that date, the OAE certified the matter as a default.

         The DRB found, based on the foregoing, that the respondent violated RPC rule 8.1(b) (failure to cooperate with disciplinary authorities); RPC rule 8.4(d) (conduct prejudicial to the administration of justice); and RPC rule 5.5(a)(1) (unauthorized practice of law) with regard to all three matters. In addition, the DRB pointed out that a person who "knowingly engages in the unauthorized practice of law" is guilty of a crime of the fourth degree (NJ Stat Ann 2C:21-22[a]). Thus, with respect to all three matters, the respondent's representation of the clients amounted to a crime. Accordingly, the respondent violated RPC rule 8.4(b) (conduct that adversely reflects on a lawyer's honesty, trustworthiness, or fitness as a lawyer). ...


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