Comm. on Prof'l Standards v. Breslow (In re Attorneys in Violation of Judiciary Law § 468-A)

• Decision Date: 01 April 2021
• Docket Number: PM-43-21
• Citation: 193 A.D.3d 1175,144 N.Y.S.3d 486
• Parties: In the MATTER OF ATTORNEYS IN VIOLATION OF JUDICIARY LAW § 468-A. Committee on Professional Standards, Now Known as Attorney Grievance Committee for the Third Judicial Department, Petitioner; v. Roy Warren Breslow, Respondent. (Attorney Registration No. 1875400)
• Court: New York Supreme Court — Appellate Division

193 A.D.3d 1175

144 N.Y.S.3d 486

In the MATTER OF ATTORNEYS IN VIOLATION OF JUDICIARY LAW § 468-A.Committee on Professional Standards, Now Known as Attorney Grievance Committee for the Third Judicial Department, Petitioner;

v. Roy Warren Breslow, Respondent.(Attorney Registration No. 1875400)

PM-43-21

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

Calendar Date: March 8, 2021

Decided and Entered: April 1, 2021

Monica A. Duffy, Attorney Grievance Committee for the Third Judicial Department, Albany, for petitioner.

Roy Warren Breslow, Verona, New Jersey, respondent pro se.

Before: Egan Jr., J.P., Lynch, Clark, Aarons and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

ON MOTION

Per Curiam.

Respondent was admitted to practice by this Court in 1983. Prior to his admission in this state, respondent was admitted in New Jersey in 1975, where he currently works as a solo practitioner.¹ Respondent was suspended from the practice of law by January 2014 order of this Court for conduct prejudicial to the administration of justice arising from his failure to comply with his attorney registration obligations beginning in 2009 ( Matter of Attorneys in Violation of Judiciary Law § 468–a, 113 A.D.3d 1020, 1025, 979 N.Y.S.2d 548 [2014] ). Having cured his longstanding registration delinquency in September 2020, respondent now moves for his reinstatement (see Rules for Attorney Disciplinary Matters [ 22 NYCRR] § 1240.16 [a]; Rules of App.Div., 3d Dept [ 22 NYCRR] § 806.16 [a]). Petitioner has submitted papers opposing respondent's motion based upon various deficiencies in his application, and respondent has submitted several affidavits in reply intended to address petitioner's concerns.

Any attorney seeking reinstatement from suspension must establish, by clear and convincing evidence, (1) that he or she has complied with the order of suspension and the Rules of this Court, (2) that he or she has the requisite character and fitness for the practice of law, and (3) that it would be in the public interest to reinstate the attorney to the practice of law in New York (see Matter of Attorneys in Violation of Judiciary Law §468–a [Nenninger], 180 A.D.3d 1317, 1317–1318, 116 N.Y.S.3d 920 [2020] ; Rules for Attorney Disciplinary Matters [ 22 NYCRR] § 1240.16 [a]). Further, a respondent must also meet certain procedural thresholds as part of his or her application. To this end, while respondent initially submitted an affidavit that omitted multiple inquiries delineated in the form affidavit provided for in appendix C to the Rules for Attorney Disciplinary Matters (22 NYCRR) part 1240, his supplemental submissions provide the necessary responses for this Court to proceed with its review.

In doing so, we must first address respondent's omission of proof of his successful passage of the Multistate Professional Responsibility Examination (hereinafter MPRE) within one year of filing his application for reinstatement (see Rules for Attorney Disciplinary Matters [ 22 NYCRR] § 1240.16 [b]). In response to petitioner's opposition, which notes this deficiency, respondent requests a waiver of the MPRE requirement (see Matter of Attorneys in Violation of Judiciary Law §468–a [Giordano], 186 A.D.3d 1827, 1828–1829, 129 N.Y.S.3d 547 [2020] ). In determining whether a respondent has established good cause, this Court considers the purpose of the MPRE requirement itself, which is to "reemphasize[ ] the importance of ethical conduct to attorneys who have been subjected to serious public discipline, and ... reassure[ ] the general public that such attorneys have undergone retraining in the field of professional responsibility" ( Matter of Cooper, 128 A.D.3d 1267, 1267, 8 N.Y.S.3d 924 [2015] ; see Matter of Attorneys in Violation of Judiciary Law §468–a [Holtz], 185 A.D.3d 1277, 1279, 126 N.Y.S.3d 592 [2020] ). In support of his waiver request, respondent states that he has practiced exclusively in New Jersey and has provided this Court with "proof of analogous professional responsibility course work" that exceeds the continuing legal education (hereinafter CLE) requirements of his home jurisdiction ( Matter of Attorneys in Violation of Judiciary Law § 468–a [Alimanova], 156 A.D.3d 1223, 1224, 67 N.Y.S.3d 672 [2017] ). Having considered that proof along with the nature of his misconduct and his lack of a disciplinary history, we find that the circumstances justify a waiver and grant respondent's request (see Matter of Attorneys in Violation of Judiciary Law §468–a [Holtz], 185 A.D.3d at 1280, 126 N.Y.S.3d 592 ; cf. Matter of Sklar, 186 A.D.3d 1773, 1775, 130 N.Y.S.3d 859 [2020] ).

Turning to the merits of his application, we are satisfied that respondent has complied with the order of suspension and the Rules of this Court based upon the attestations in his appendix C form affidavit as well as his belated affidavit of compliance (see Matter of Attorneys in Violation of Judiciary Law §468–a [Luce], 190 A.D.3d 1083, 1084, 137 N.Y.S.3d 842 [2021] ; Matter of Attorneys in Violation of Judiciary Law §468–a [Timourian], 153 A.D.3d 1513, 1515, 59...