In the Matter of Joshua A. Messian (admitted as Joshua Abraham Messian), an attorney and counselor-at-law: Attorney Grievance Committee for the First Judicial Department, Petitioner, Joshua A. Messian, Respondent.
proceedings instituted by the Attorney Grievance Committee
for the First Judicial Department. Respondent, Joshua A.
Messian, 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 May 19, 2010.
Dopico, Chief Attorney, Attorney Grievance Committee, New
York (Naomi F. Goldstein, of counsel), for petitioner.
Celli Brinkerhoff & Abady LLP (Hal R. Lieberman, of
counsel), for respondent.
Barbara R. Kapnick, Justice Presiding, Marcy L. Kahn, Ellen
Gesmer, Cynthia S. Kern, Peter H. Moulton, Justices.
Joshua A. Messian was admitted to the practice of law in the
State of New York by the Second Judicial Department on May
19, 2010, under the name Joshua Abraham Messian.
Respondent's last registered address listed with the
Office of Court Administration was in California, where he
resides, but the misconduct at issue occurred within the
First Judicial Department.
motion dated June 29, 2017, the Attorney Grievance Committee
seeks an order, pursuant to the Rules for Disciplining
Matters (22 NYCRR) 1240.9(a)(2), immediately suspending
respondent from the practice of law until further order of
this Court. The Committee cites respondent's admissions
under oath that he committed acts of professional misconduct,
namely the conversion and/or misappropriation of client and
third-party funds, which immediately threaten the public
does not dispute the facts alleged by the Committee, and
admits he used client and third-party funds for his own
personal purposes related to his narcotics addiction.
Respondent avers that he does not owe money to any clients
other than one to whom he owes approximately $50, 000, and
for whom his counsel is currently holding $43, 000 in trust.
Respondent expects to finalize restitution in the near
counsel avers that because respondent currently resides in
California (where he is not admitted to practice), it can be
inferred that he does not intend to practice law for the
foreseeable future. Furthermore, in light of respondent's
"intense" commitment to recovery from his
longstanding drug addiction, counsel contends that respondent
"is not only currently incapable of practicing law but
cannot adequately defend himself against the charges against
requests that if this Court deems his immediate suspension
warranted it impose a disability suspension pursuant to 22
NYCRR 1240.14(b), which provides - -
any time during the pendency of a disciplinary proceeding or
an investigation conducted pursuant to these Rules, the
Committee, or the respondent, may apply to the Court for a
determination that the respondent is incapacitated from
practicing law by reason of mental disability or condition,
alcohol or substance abuse, or any other condition that
renders the respondent incapacitated from practicing law.
Applications by respondents shall include medical proof
demonstrating incapacity. The Court may appoint a
medical expert to examine the respondent and render a report.
When the Court finds that a respondent is incapacitated from
practicing law, the Court shall enter an order immediately
suspending the respondent from the practice of law and may
stay the pending proceeding or investigation..."
(emphasis added), Respondent has included a letter from a
California licensed therapist who worked with him at an
inpatient rehabilitation facility from May to December 2016.
The therapist attests to respondent's commitment to
recovery, and states -
feel it is time that [respondent] resume back with his life
not only as a sober individual but also as a practicing
attorney. I do feel [respondent] has become capable to
deal with the stressors of his job and has learned how to
cope in a healthier manner with the day to day practices of
his life" (emphasis added). Respondent has also included
affidavits from his Narcotics Anonymous sponsor and two other
Narcotics Anonymous members, all of whom attest to his
commitment to recovery.
Committee opposes respondent's request for a disability
suspension pursuant to 22 NYCRR 1240.14(b), arguing that he
has not submitted any medical documentation to support such
request. The Committee contends that the therapist's
letter undermines respondent's application, since she
opines that it is time for him to resume the practice of law.
Furthermore, the affidavits from his fellow Narcotics
Anonymous members do not constitute "medical proof
demonstrating incapacity" under 1240.14(b). The
Committee notes that respondent may offer the letter and
affidavits as mitigation at a hearing based upon formal
charges but that they are irrelevant in the context of the
Committee has presented sufficient evidence for this Court to
immediately suspend respondent pursuant to 22 NYCRR
1240.9(a)(2) based upon his admissions to conversion of
client and third-party funds (see e.g. Matter of
Perchekly, 149 A.D.3d 17');">149 A.D.3d 17 [1st ...