In re Anderson

206 A.D.3d 1431

170 N.Y.S.3d 365

In the MATTER OF Rosemarie Andrea ANDERSON, an Attorney.

(Attorney Registration No. 3945912)

PM–112–22

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

Calendar Date: February 22, 2022

Decided and Entered: June 23, 2022

Monica A. Duffy, Attorney Grievance Committee for the Third Judicial Department, Albany (Alison M. Coan of counsel), for Attorney Grievance Committee for the Third Judicial Department.

Rosemarie Andrea Anderson, River Vale, New Jersey, respondent pro se.

Before: Lynch, J.P., Aarons, Pritzker, Ceresia and Fisher, JJ.

MEMORANDUM AND ORDER ON MOTION

Per Curiam.

Respondent was admitted to practice by this Court in 2001, having previously been admitted in New Jersey.¹ By October 2021 order, the Supreme Court of New Jersey disbarred respondent from the practice of law in that jurisdiction based upon findings that she, among other things, engaged in the knowing misappropriation of client funds, violated attorney record-keeping requirements and failed to correct a known misapprehension present in a disciplinary investigation (see Matter of Anderson, 248 N.J. 576, 261 A.3d 989 [2021] ).

The Attorney Grievance Committee for the Third Judicial Department (hereinafter AGC) now accordingly moves to impose discipline upon respondent in this state pursuant to Rules for Attorney Disciplinary Matters ( 22 NYCRR) § 1240.13(a) and Rules of the Appellate Division, Third Department (22 NYCRR) § 806.13 based upon her established professional misconduct in New Jersey. Respondent's submission in opposition to the motion offers defenses to the imposition of discipline (see Rules for Attorney Disciplinary Matters [ 22 NYCRR] § 1240.13 [b]) and presents various mitigating factors. AGC, by permission of this Court, has filed a reply affirmation.

Pursuant to Rules for Attorney Disciplinary Matters ( 22 NYCRR) § 1240.13(c), this Court may discipline an attorney for "misconduct committed in [a] foreign jurisdiction." Upon consideration of the facts, circumstances and documentation before us, we conclude that respondent's submission in opposition to the imposition of discipline in this state has not established any of the available defenses to AGC's motion. Our review of the record fails to support respondent's allegations that she was denied due process and that there was an infirmity of proof in the extensive New Jersey disciplinary proceedings, where she was represented by counsel and afforded a full disciplinary hearing before a Special Master and a de novo review by New Jersey's Disciplinary Review Board (hereinafter DRB). Significantly, the DRB's detailed findings of fact were accepted by the Supreme Court of New Jersey in rendering its decision (see Rules for Attorney Disciplinary Matters [ 22 NYCRR] § 1240.13 [b][2]). Contrary to respondent's argument, we do not agree that the Special Master's exclusion of nonrelevant testimony deprived her of the opportunity to properly defend herself. To the extent that respondent also raises the remaining defense available on this motion, we note that she presents nothing that would support a conclusion that her conduct would not also be subject to discipline in New York (see Rules for Attorney Disciplinary Matters [ 22 NYCRR] § 1240.13 [b][3]).² Accordingly, we find that respondent's defenses to the motion are not persuasive and, therefore, her misconduct is deemed established (see Matter of Adams, 204 A.D.3d 1300, 1301, 165 N.Y.S.3d 388 [2022] ).

Turning our attention to the issue of the appropriate disciplinary sanction, we note initially that the permanent disbarment imposed by the Supreme Court of New Jersey was explicitly mandated as the result of precedent in that state calling for that sanction once a determination has been made that knowing misappropriation of client funds occurred, regardless of whether the intentional misappropriation arose from venal or larcenous motives (see Matter of Wilson, 81 N.J. 451, 458–459, 409 A.2d 1153 [1979] ).³ In contrast, there is no policy in New York requiring automatic disbarment or a specific sanction upon a finding of knowing misappropriation or any other disciplinary rule violation.⁴ Thus, upon our review of a disciplinary ruling by a foreign jurisdiction, "we are not bound by that decision in determining the proper sanction in this state" ( Matter of Hoines , 185 A.D.3d 1349, 1350, 128 N.Y.S.3d 374 [2020] ).

In considering the appropriate sanction for respondent's sustained misconduct in New Jersey, it cannot be ignored that "[f]ew, if any, of an attorney's professional obligations are as crystal clear as the duty to safeguard client funds" ( Matter of Galasso, 19 N.Y.3d 688, 693, 954 N.Y.S.2d 784, 978 N.E.2d 1254 [2012] ). Accordingly, the knowing misappropriation of client funds – even when not motivated by venality – is significant misconduct which, in respondent's case, is aggravated by, among other things, her repeated violation of mandated record-keeping requirements. Nonetheless, evidence that an attorney has not acted with venality or dishonesty can appropriately be considered a factor in mitigation (see id. at 694, 954 N.Y.S.2d 784, 978 N.E.2d 1254 ; see also ABA Standards for Imposing Lawyer Sanctions standard 9.32[b]; 7 N.Y. Jur 2d Attorneys at Law § 519 ). Moreover, we note the absence of proof of prior discipline on respondent's part (see ABA Standards for Imposing Lawyer Sanctions standard 9.32[a]) and the fact that her improper misappropriation of funds involved only one client over a very short period of time, with all funds ultimately replaced with no apparent harm to the client (see ABA Standards for Imposing Lawyer Sanctions standard 9.32[d]).⁵ Respondent acknowledged the stress she was experiencing at the relevant time period due to the demands of her solo practice in New Jersey and her frequent trips abroad to handle legal matters out of the country. Respondent has also submitted numerous character letters by friends and colleagues, evidence of her meaningful volunteer work and provision of pro bono services on behalf of vulnerable persons in her community (see ABA Standards for Imposing Lawyer Sanctions standard 9.32[g]). We have additionally considered respondent's sincere remorse for her misconduct and her attestation that she has learned from her past poor judgment (see ABA Standards for Imposing Lawyer Sanctions standard 9.32 [l ]). Finally, it must also be noted that respondent has already been meted a significant sanction as the result of her permanent disbarment in her home jurisdiction of New Jersey (see ABA Standards for Imposing Lawyer Sanctions standard 9.32[k]).

Given these circumstances, we conclude, in the exercise of our broad discretion, that a deviation from the Supreme Court of New Jersey's disciplinary sanction is warranted (see e.g. Matter of Spechler, 198 A.D.3d 1098, 1100, 155 N.Y.S.3d 615 [2021] ; Matter of Hoover, 196 A.D.3d 994, 995–996, 151 N.Y.S.3d 741 [2021] ; Matter of Hoines, 185 A.D.3d at 1350, 128 N.Y.S.3d 374 ). Notably, suspension from practice has generally been considered an appropriate...