In re Harmon

191 A.D.3d 1149

142 N.Y.S.3d 631

In the MATTER OF Rhashea Lynn HARMON, a Suspended Attorney.

(Attorney Registration No. 4988713)

PM-10-21

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

Calendar Date: January 11, 2021

Decided and Entered: February 18, 2021

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.

Rhashea Lynn Harmon, Philadelphia, Pennsylvania, respondent pro se.

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

MEMORANDUM AND ORDER ON MOTION

Per Curiam.

Respondent was admitted to practice in this state in 2011; she was also admitted in New Jersey and in her home state of Pennsylvania the following year. In July 2020, this Court suspended respondent from the practice of law in this state due to her registration delinquency beginning with the 2017–2018 biennial period ( Matter of Attorneys in Violation of Judiciary Law § 468–a, 185 A.D.3d 1373, 1375, 126 N.Y.S.3d 685 [2020] ). Respondent remains so suspended.

In October 2017, the New Jersey Office of Attorney Ethics (hereinafter OAE) commenced an investigation into allegations that respondent had, among other things, failed to properly communicate with a client, failed to properly terminate her relationship with that client and failed to protect that client's interests following the termination of representation. Specifically, respondent failed to appear at her client's trial and improperly attempted to withdraw from representation without the court's permission, which ultimately resulted in a mistrial. Thereafter, OAE sought respondent's cooperation with its investigation on numerous occasions, to no avail. Accordingly, OAE presented the matter to the New Jersey Disciplinary Review Board on default, alleging that respondent had engaged in misconduct in violation of New Jersey Rules of Professional Conduct, rules 1.4(b) ; 1.16(c) and (d); 8.4(d) ; and 8.1(b). The Disciplinary Review Board sustained the charges and recommended a three-month suspension based upon the nature of the misconduct and several factors in aggravation. In November 2019, the Supreme Court of New Jersey adopted the Disciplinary Review Board's findings, but determined that an enhanced sanction was warranted based on respondent's failure to respond to the order to show cause before the court, and suspended respondent indefinitely ( Matter of Harmon, 240 N.J. 124, 220 A.3d 477 [2019] ). Respondent remains suspended in New Jersey.

Meanwhile, in September 2018, the Pennsylvania Office of Disciplinary Counsel (hereinafter PAODC) began investigating respondent based upon her conduct in connection with a May 2015 arrest for criminal trespass, criminal mischief and criminal conspiracy, as well as allegations that she had filed a frivolous federal civil rights lawsuit intended to harass her former landlord and had filed fraudulent tax documents. Further, in February 2019, PAODC commenced a separate investigation into allegations that respondent had engaged in the unauthorized practice of law after being administratively suspended in September 2017. Similar to her New Jersey disciplinary matter, respondent made no meaningful effort to cooperate with PAODC's investigations into her conduct despite being given various opportunities. Accordingly, in April 2019, PAODC filed disciplinary charges against respondent alleging that her actions violated Pennsylvania Rules of Professional Conduct, rules 3.1 ; 4.4(a) ; 5.5(a), (b)(1) and (2) ; 7.1 ; and 8.4(b), (c) and (d), along with various violations of the Pennsylvania Rules of Disciplinary Enforcement. Respondent did not provide an answer to the petition and failed to appear at her disciplinary hearing, which resulted in PAODC presenting her matter to the Disciplinary Board of the Supreme Court of Pennsylvania on default. In its May 2020 decision, the Disciplinary Board sustained the charges against respondent and recommended disbarment, determining, based on the nature of her misconduct and various factors in aggravation, that she was unfit to practice law and posed a danger to the public. In July 2020, the Supreme Court of Pennsylvania accepted the Disciplinary Board's recommendation and disbarred respondent from the practice of law in that state.

The Attorney Grievance Committee for the Third Judicial Department (hereinafter AGC) now moves 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 as a consequence of her New Jersey and Pennsylvania misconduct. Respondent has submitted correspondence in response and AGC has replied with this Court's permission.

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." An attorney facing discipline as a result of his or her sustained foreign misconduct may assert in his or her defense that the disciplinary hearings 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 Matter of Petigara, 186 A.D.3d 940, 941, 129 N.Y.S.3d 201 [2020] ). In her submission to this Court in response to AGC's motion, respondent raises none of her available defenses and, accordingly, we find that she has waived her opportunity to do so (see Matter of Hoines, 185 A.D.3d 1349, 1349, 128 N.Y.S.3d 374 [2020] ). Notwithstanding, had she elected to raise those defenses, her efforts would have been in vain. To this end, respondent was clearly provided sufficient due process, as she deliberately chose to forgo any participation in both the New Jersey and Pennsylvania disciplinary proceedings despite receiving a multitude of opportunities to present a defense (see generally Matter of Park, 188 A.D.3d 1550, 1551, 135 N.Y.S.3d 524 [2020] ; Matter of Berglund, 183 A.D.3d 1178, 1179, 123 N.Y.S.3d 303 [2020] ). Further, both the New Jersey and Pennsylvania findings of misconduct are well detailed and supported by ample proof. Finally, there is no question that respondent's misconduct in both states would also constitute misconduct in this state in violation of Rules of Professional Conduct ( 22 NYCRR 1200.0 ) rules 1.4(a)(3) and (4); 1.16(d) and (e); 3.1(a) and (b); 4.4(a) ; 5.5(a) and (b); 7.1(a) ; and 8.4(b), (c) and (d) (see e.g. Matter of Rinaldo, 168 A.D.3d 1212, 1212, 90 N.Y.S.3d 710 [2019] ; Matter of McArdle, 167 A.D.3d 1223, 1224, 87 N.Y.S.3d 910 [2018] ; Matter of Pierre, 154 A.D.3d 194, 201, 62 N.Y.S.3d 62 [2017], lv dismissed 31 N.Y.3d 1043, 76 N.Y.S.3d 505, 100 N.E.3d 844 [2018], cert denied ––– U.S. ––––, 139 S. Ct. 140, 202 L.Ed.2d 87 [2018] ; Matter of Bailey, 145 A.D.3d 1182, 1182, 41 N.Y.S.3d 445 [2016] ). Accordingly, we grant AGC's motion, find the misconduct in New Jersey and Pennsylvania established and turn to the issue of the appropriate disciplinary sanction (see Matter of Ndi, 186 A.D.3d 916, 917, 129 N.Y.S.3d 199 [2020] ).

To that end, we consider the facts underlying the multiple acts of sustained misconduct before us in this matter. In New Jersey, respondent improperly withdrew from her client's criminal matter on the day of trial, completely...