In re Hankes

210 A.D.3d 1282

177 N.Y.S.3d 400

In the MATTER OF Robert John HANKES, an Attorney.

(Attorney Registration No. 5304712)

PM–194–22

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

Calendar Date: August 1, 2022

Decided and Entered: November 17, 2022

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

Before: Egan Jr., J.P., Lynch, Aarons, Pritzker and McShan, JJ.

MEMORANDUM AND ORDER ON MOTION

Per Curiam.

Respondent was admitted to practice by this Court in 2015 and has no prior disciplinary history in New York. He previously listed a business address with the Office of Court Administration in Illinois, where he was admitted in 2006 and where he currently resides. By order dated January 20, 2022, the Supreme Court of Illinois suspended respondent from the practice of law in that jurisdiction for a period of three years based upon findings that respondent had violated a disciplinary rule by, among other things, fraudulently submitting invoices to clients and payment requests to his employer, an Illinois law firm (see Illinois Rules of Professional Conduct Rule 8.4 [c]). Respondent remains so suspended in Illinois to date.

The Attorney Grievance Committee for the Third Judicial Department (hereinafter AGC) now accordingly moves, by order to show cause marked returnable on August 1, 2022, and supported by affirmation of counsel, to impose discipline upon respondent pursuant to Rules for Attorney Disciplinary Matters ( 22 NYCRR) § 1240.13 and Rules of the Appellate Division, Third Department (22 NYCRR) § 806.13 based upon his established misconduct in Illinois. Respondent has not submitted a response to AGC's motion.

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." In defense, an attorney may assert that the disciplinary proceedings in the foreign jurisdiction lacked due process; that there was an infirmity of proof establishing the misconduct; or that the alleged misconduct forming the basis for discipline in the foreign jurisdiction would not constitute misconduct in New York (see Rules for Attorney Disciplinary Matters [ 22 NYCRR] § 1240.13 [b]). Here, in light of respondent's failure to respond to AGC's motion, he has waived any available defenses and AGC's motion to impose discipline is granted (see Matter of Colby, 156 A.D.3d 1215, 1215–1216, 67 N.Y.S.3d 359 [3d Dept. 2017] ; Matter of Tan, 149 A.D.3d 1344, 1345, 52 N.Y.S.3d 171 [3d Dept. 2017] ; Matter of Halbfish, 144 A.D.3d 1263, 1263, 39 N.Y.S.3d 847 [3d Dept. 2016] ).

Turning to the issue of the sanction to be imposed, we are not obliged to impose the same sanction that was imposed by the foreign tribunal, but rather are charged with crafting a sanction that protects the public, maintains the honor and integrity of the profession or deters others from engaging in similar misconduct (see Matter of Yiheng Lou, 206 A.D.3d 1221, 1224, 168 N.Y.S.3d 760 [3d Dept. 2022] ; Matter of Hoines, 185 A.D.3d 1349, 1350, 128 N.Y.S.3d 374 [3d Dept. 2020] ; see also Rules for Attorney Disciplinary Matters [ 22 NYCRR] § 1240.8 [b][2]). Respondent's misconduct in Illinois, which he admitted to in the underlying Illinois disciplinary proceeding, is serious and, if perpetrated in New York, would similarly constitute serious misconduct under New York's analogous rule (see Rules of Professional Conduct [ 22 NYCRR 1200.0 ] rule 8.4 [c]).

In mitigation, we note that respondent appears compliant with the Illinois suspension order, provided some notice of his Illinois suspension (see Rules for Attorney Disciplinary Matters [ 22 NYCRR] § 1240.13 [d]) and has maintained his attorney registration in this state (compare Matter of Zankowski, 208 A.D.3d 1495, 1497, 174 N.Y.S.3d 505 [3d Dept. 2022] ). In aggravation, we observe that respondent has failed to present any substantive mitigating circumstances beyond the factors presented during his Illinois disciplinary proceeding (see ABA Standards for Imposing Lawyer Sanctions standards 9.32[a], [d], [l]) that would support a deviation from the seriousness of the discipline imposed in Illinois (see Matter of Ugwuonye, 209 A.D.3d 1254, 1254-56, 176 N.Y.S.3d 379 [3d Dept. 2022] )...