Comm. on Prof'l Standards v. Meagher (In re Meagher), PM–238–19

• Decision Date: 26 December 2019
• Docket Number: PM–238–19
• Citation: 115 N.Y.S.3d 553,178 A.D.3d 1351
• Parties: In the MATTER OF Frederick John MEAGHER Jr., a Suspended Attorney. Committee on Professional Standards, Now Known as Attorney Grievance Committee for the Third Judicial Department, Petitioner; v. Frederick John Meagher Jr., Respondent. (Attorney Registration No. 1408939) (Proceeding No. 1.) In the Matter of Frederick John Meagher Jr., a Suspended Attorney. Attorney Grievance Committee for the Third Judicial Department, Petitioner; v. Frederick John Meagher Jr., Respondent. (Attorney Registration No. 1408939) (Proceeding No. 2.)
• Court: New York Supreme Court — Appellate Division

178 A.D.3d 1351

115 N.Y.S.3d 553

In the MATTER OF Frederick John MEAGHER Jr., a Suspended Attorney.

Committee on Professional Standards, Now Known as Attorney Grievance Committee for the Third Judicial Department, Petitioner;

v.Frederick John Meagher Jr., Respondent.

(Attorney Registration No. 1408939)

(Proceeding No. 1.)

In the Matter of Frederick John Meagher Jr., a Suspended Attorney.

Attorney Grievance Committee for the Third Judicial Department, Petitioner;

v.Frederick John Meagher Jr., Respondent.

(Attorney Registration No. 1408939)

(Proceeding No. 2.)

PM–238–19

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

Calendar Date: November 4, 2019

Decided and Entered: December 26, 2019

Monica A. Duffy, Attorney Grievance Committee for the Third Judicial Department, Albany (Michael K. Creaser of counsel), for petitioner.

O'Connell and Aronowitz, P.C., Albany (Jeffrey J. Sherrin of counsel), for respondent.

Before: Garry, P.J., Lynch, Clark and Aarons, JJ.

MEMORANDUM AND ORDER ON MOTION

Per Curiam.

Respondent was admitted to practice by this Court in 1972 and has maintained offices for the practice of law in both Broome County and in Pennsylvania, where he was admitted to practice in 1977. In December 2017, based on two petitions alleging multiple counts of misconduct, this Court granted the parties' motion to impose discipline upon respondent by consent and suspended him for a one-year term upon his admission to more than 20 rule violations in connection with his representation of six different clients ( 156 A.D.3d 1218, 67 N.Y.S.3d 361 [2017] ). Respondent has not sought his reinstatement to date.

Petitioner now moves for an order pursuant to Judiciary Law §§ 90(2) and 486 disbarring respondent based upon allegations that he has, among other things, continued to practice law while suspended or, in the alternative, for an order pursuant to Judiciary Law §§ 90(2) and 750 finding respondent in contempt of this Court's December 2017 order of suspension based upon his unauthorized practice of law and additional allegations that respondent had violated specific mandates in that order. In response, however, respondent cross-moves for an order permitting him to resign from the New York bar while respondent's proceeding seeking to disbar him is pending (see Rules for Attorney Disciplinary Matters [ 22 NYCRR] § 1240.10 ). Petitioner opposes the cross motion and respondent has submitted an affidavit in reply.

Addressing respondent's cross motion first, we note that an attorney seeking to resign while a disciplinary proceeding is pending must, among other things, properly "set[ ] forth the specific nature of the charges or the allegations under investigation" (Rules for Attorney Disciplinary Matters [ 22 NYCRR] § 1240.10 [a] ). In this respect, we find that respondent's shrift statements in his affidavit constituting his attempt to provide the requisite detail concerning the allegations of his unauthorized practice of law and further contemptuous conduct are insufficient to meet this requirement and fail to convey the appropriate culpability for his actions. Moreover, respondent's reply to petitioner's papers in opposition to the cross motion casts further doubt on the sincerity of his belief that his conduct was improper. Accordingly, we deny respondent's cross motion to resign during the pendency of this proceeding and turn to the merits of petitioner's motion.

The December 2017 order suspending respondent specifically directed that respondent comply with Rules for Attorney Disciplinary Matters ( 22 NYCRR) § 1240.15 governing the conduct of suspended attorneys and forbid him from "appear[ing] as an attorney or counselor-at-law before any court, judge, justice, board, commission or other public authority, or to giv[ing] to another an opinion as to the law or its application, or any advice in relation thereto, or [holding] himself out in any way as an attorney and counselor-at-law in this State" ( 156 A.D.3d at 1222, 67 N.Y.S.3d 361 ). Moreover, we specifically directed respondent to "discontinue all public and private notices," including social media and any other methods of advertising, "that assert that he may engage in the practice of law in New York." Finally, our order mandated that respondent advise Pennsylvania disciplinary authorities of his suspension in this state by a date certain.

Having reviewed the submissions from the parties, we find that petitioner has submitted uncontroverted evidence that respondent has engaged in conduct in violation of the foregoing directives. First, we note that respondent admitted in his answer to the motion that he had improperly advised his clients that he was merely retired rather than suspended, fostering the impression that he was still authorized to continue practicing law in this state. Further, the documentary evidence submitted by petitioner clearly evidences that respondent improperly identified himself as the attorney of record in forms filed in two estate matters with the Broome County Surrogate's Court and met with at least one client concerning the filing of a third document with that court. Petitioner has also submitted documentary proof that res...