Standards v. D'Alessandro (In re Attorneys in Violation of Judiciary Law § 468-A.)

• Decision Date: 27 November 2019
• Docket Number: PM-212-19
• Citation: 114 N.Y.S.3d 512,177 A.D.3d 1243
• 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. Beth Anne D'Alessandro, Respondent. (Attorney Registration No. 2360139)
• Court: New York Supreme Court — Appellate Division

177 A.D.3d 1243

114 N.Y.S.3d 512

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. Beth Anne D'Alessandro, Respondent.(Attorney Registration No. 2360139)

PM-212-19

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

Calendar Date: October 15, 2019

Decided and Entered: November 27, 2019

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

Beth Anne D'Alessandro, Jersey City, New Jersey, respondent pro se.

Before: Garry, P.J., Egan Jr., Mulvey and Pritzker, JJ.

MEMORANDUM AND ORDER ON MOTION

Per Curiam.

Respondent was admitted to practice by this Court in 1990. She lists a business address in New Jersey, her home jurisdiction, where she was previously admitted in 1977. By January 2014 order of this Court, respondent was suspended indefinitely from the practice of law for conduct prejudicial to the administration of justice arising from her failure to comply with the attorney registration requirements of Judiciary Law § 468–a since the 2006–2007 biennial period (Matter of Attorneys in Violation of Judiciary Law § 468–a, 113 A.D.3d 1020, 1029, 979 N.Y.S.2d 548 [2014]). After curing her registration delinquency, respondent initially sought her reinstatement in October 2018. As part of her application, respondent moved for a waiver of the Multistate Professional Responsibility Examination (hereinafter MPRE) requirement applicable to attorneys seeking reinstatement from disbarment or suspensions of more than six months (see Rules for Attorney Disciplinary Matters [ 22 NYCRR] § 1240.16 [a] ). In February 2019, we denied respondent's motion, determining that her proffered justification for a waiver of the MPRE requirement was insufficient because, although she had expressed her intention to resign immediately following her reinstatement, there was simply "no mechanism to ensure that she [would] follow[ ] through with her proposal" ( 169 A.D.3d 1349, 1351, 95 N.Y.S.3d 371 [2019] ).

Now, respondent moves for her reinstatement for a second time and, as part of her application, again seeks a waiver of the MPRE requirement (see Rules for Attorney Disciplinary Matters [ 22 NYCRR] § 1240.16 [a] ). However, respondent also contemporaneously seeks an order granting her leave to resign for nondisciplinary reasons (see Rules for Attorney Disciplinary Matters [ 22 NYCRR] § 1240.22 ). Petitioner has opposed respondent's motion based, in part, on respondent's failure to provide the proper form affidavit for nondisciplinary resignation (see Rules for Attorney Disciplinary Matters [22 NYCRR] part 1240, appendix E), and respondent has since submitted a supplemental affidavit addressing petitioner's concerns.¹

In order to establish her entitlement to a waiver of the MPRE requirement, which is essential to her reinstatement application, respondent must establish "that additional MPRE testing would be unnecessary under the circumstances" (Matter of Attorneys in Violation of Judiciary Law § 468–a [Alimanova], 156 A.D.3d 1223, 1224, 67 N.Y.S.3d 672 [2017] ). In considering her request, we note the dual purposes underlying the MPRE requirement for attorneys seeking reinstatement from long suspensions or disbarment – "reemphasiz[ing] the importance of ethical conduct to attorneys who have been subjected to serious public discipline, and [reassuring] 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] ). By seeking to simultaneously resign in conjunction with her motion for reinstatement, we find that respondent has effectively obviated the need for ethical retraining, as she will no longer be admitted to the practice of law in this state were we to grant her all of the relief that she has requested. Further, respondent does not seek reinstatement from serious public discipline; rather, she has cured her registration delinquency and merely seeks to resign from the bar in good standing. Accordingly, we find that the need to reemphasize the importance of ethical conduct in the future is diminished. For these reasons, we find that requiring respondent to undergo additional MPRE testing is unnecessary under the circumstances before us and we therefore grant her waiver request.

Turning to the remainder of her application, we find that respondent has established by clear and convincing evidence that she has satisfied the three-part test applicable to attorneys seeking reinstatement from disciplinary suspension (see Matter of Attorneys in Violation of Judiciary Law § 468–a [Alimanova], 175 A.D.3d 1767, 1768, 108 N.Y.S.3d 556 [2019] ). Respondent properly submits a duly-sworn form affidavit consistent with appendix C to the Rules for Attorney Disciplinary Matters (22 NYCRR) part 1240 (see Rules for Attorney Disciplinary Matters [ 22 NYCRR] § 1240.16 [b] ). Further, she provides assurances in her affidavit that she has complied with the order suspending her and the relevant rules applicable to suspended attorneys; specifically, respondent notes that she has never practiced in New York, eliminating the need to contact any client, return client property or return any fees (see Rules for Attorney Disciplinary Matters [22 NYCRR] part 1240, appendix C, ¶¶ 15, 18). Finally, Office of Court Administration records demonstrate that respondent has cured her outstanding registration delinquency. Accordingly, we find that respondent's submissions provide sufficient indicia that she has fully complied with the order of suspension and this Court's rules.

As to her character and fitness, respondent attests to having no criminal record other than two minor traffic infractions and further attests that, to her knowledge, she is not the subject of any governmental investigation (...