Attorney Grievance Comm. for the First Judicial Dep't v. Giovati (In re Giovati)

• Decision Date: 09 April 2019
• Docket Number: M-42
• Citation: 98 N.Y.S.3d 71,171 A.D.3d 214
• Parties: In the MATTER OF Maive Rita GIOVATI, a Suspended Attorney: Attorney Grievance Committee for the First Judicial Department, Petitioner, v. Maive Rita Giovati, Respondent.
• Court: New York Supreme Court — Appellate Division

171 A.D.3d 214

98 N.Y.S.3d 71

In the MATTER OF Maive Rita GIOVATI, a Suspended Attorney:Attorney Grievance Committee for the First Judicial Department, Petitioner,

v.Maive Rita Giovati, Respondent.

M-42

Supreme Court, Appellate Division, First Department, New York.

April 09, 2019

Jorge Dopico, Chief Attorney, Attorney Grievance Committee, New York (Kathy W. Parrino, of counsel), for petitioner.

Respondent pro se.

Hon. Judith J. Gische, Justice Presiding, Troy K. Webber, Jeffery K. Oing, Anil C. Singh, Peter H. Moulton, Justices.

PER CURIAM

Respondent Maive Rita Giovati was admitted to the practice of law in the State of New York by the Second Judicial Department on January 14, 1987. Respondent's last registered address is within the First Judicial Department.

The Attorney Grievance Committee (AGC), and respondent jointly seek an order, pursuant to the Rules for Attorney Disciplinary Matters ( 22 NYCRR) § 1240.8(a)(5), to suspend respondent from the practice of law for a period of five years retroactive to September 21, 2015, the date of the order denying respondent's prior motion for reinstatement.

By order of February 3, 1998, effective March 6, 1998, this Court suspended respondent from the practice of law as part of a mass suspension proceeding, for failure to file attorney registration statements and pay biennial registration fees ( 240 A.D.2d 106, 676 N.Y.S.2d 1 [1st Dept. 1998] ).

By unpublished order of September 21, 2015, this Court denied respondent's motion for reinstatement pending conclusion of an investigation by the AGC.

Thereafter, in 2016, the AGC moved for respondent's immediate disbarment, without further proceedings, based on her alleged unauthorized practice of law in willful violation of this Court's suspension order. By order of February 1, 2018, this Court denied the AGC's motion without prejudice to further proceedings before the AGC and respondent remained suspended pursuant to our February 3, 1998 order.

In June 2018, the AGC filed a petition containing 11 charges alleging that respondent, inter alia, failed to meet her registration obligations, engaged in the unauthorized practice of law while suspended, and filed false affidavits and documents with the courts, the Office of Court Administration (OCA), and the AGC. In her answer, respondent admitted four of the charges but asserted that her misconduct was due to unintentional error.

By unpublished order of November 16, 2018, this Court deemed four charges established based on respondent's admissions and appointed a referee to conduct a hearing on the remaining charges and make a recommendation as to sanction.

Pursuant to 22 NYCRR 1240.8(a)(5)(i), this motion is supported by a joint affirmation which contains a statement of facts, conditional admissions of professional misconduct, factors in aggravation and mitigation, and agreed upon discipline. Pursuant to 22 NYCRR 1240.8(a)(5)(ii), the motion is accompanied by respondent's affidavit acknowledging her admission to the stipulated facts, her consent to the agreed upon discipline, which she has freely and voluntarily given, and her full awareness of the consequences of such consent.

· Prior to 2015, respondent last registered with OCA in 1987, at the time of her admission, but for the 28 years thereafter, she did not register, did not pay the required fees, nor did she update her residential and business addresses as required by 22 NYCRR 118.1(f). As noted, effective March 6, 1998, respondent was suspended until further order of this Court for failure to meet her registration obligations. Respondent asserts that she never received any registration forms, nor notices or calls from OCA advising of her delinquency, and she was unaware of her suspension until late 2014.

· Respondent admits that she engaged in the unauthorized practice of law prior and subsequent to her March 6, 1998 suspension: from 1986 to 1987 respondent was employed as an Arbitration Counsel with the New York Stock Exchange (N.Y.SE), the commencement of which pre-dated her January 1987 admission; from September 2004 through January/February 2006, respondent, while suspended, resumed her employment as an Arbitration Counsel with the NYSE; and between 1989 and 2014 respondent served as an arbitrator for the Financial Industry Regulatory Authority (FINRA) during which period she held herself out as a duly registered attorney¹ ; and commencing in 2007 respondent served as a volunteer for the New York City Bar Association's (N.Y.CBA) Monday Night Law (MNL) program (which provides free legal advice to members of the public who make appointments to meet with two partnered attorneys) in which capacity respondent held herself out to the NYCBA and the public as a licensed attorney and dispensed legal advice to MNL's "clients." Respondent continued to participate in the MNL program after she learned of her suspension.

· Respondent admits further that she made false statements to the courts, OCA, and the AGC. In May 2015, respondent submitted an affidavit to the Second Department to change the name under which she practices law in which she falsely stated that she was in good standing at the bar and not suspended from practice. Respondent asserts that her claim of good standing was done by mistake, which she tried to correct by contacting the Second Department upon learning of her error.

· On May 28, 2015, two days after she executed this false affidavit, respondent registered with OCA, paid delinquent fees for 1987–1989 and 2011–2016, but falsely certified that she was retired under 22 NYCRR 118.1(g) from 1991 through 2010 (during which period respondent was employed as an Arbitration Counsel with the NYSE [2004–2006] ) and, therefore, was exempt from paying registration fees for this period.² Respondent asserts that she certified as retired for the aforementioned period because she received erroneous information from court personnel, but upon learning of the error she rescinded her retirement claim and paid the fees due.

· Additionally, on her May 28, 2015 registration form respondent affirmed that she had completed 196 CLE credits, had retained certificates of attendance/completion for such, and was in full compliance with 22 NYCRR Part 1500's CLE requirements. Respondent, however, produced certificates documenting completion of only 142.85 CLE credits (she needed at least 192 CLE hours at that time). Respondent admits that she reported an incorrect number of CLE credits on the OCA registration form but that this "was an unintentional error made during a stressful time of trying to be reinstated to the New York Bar so that she [could] be financially independent of her emotionally and financially abusive husband, [from] whom she [has] been separated for 17 years."

· In July 2015, respondent submitted an affidavit to this Court in support of her motion for reinstatement in which she stated "[t]he reason for my default in registration is that I stopped practicing law in November 1992 and have [n]ot resumed the practice of law, I did not realize I still needed to pay registration dues to remain in good standing. I thought that my registration would lapse without any consequences. In March of 2015, I learned that I misunderstood the New York [S]tate Bar Rules for non-practicing attorneys." Respondent admits that she did not cease the practice of law in 1992 as represented and evidenced by her employment as an Arbitration Counsel with the NYSE between 2004 and 2006, as well as by her participation in the NYCBA's...