In re Kahn

210 A.D.3d 1236

176 N.Y.S.3d 891

In the MATTER OF Alexander Elliott KAHN, a Suspended Attorney.

(Attorney Registration No. 3968518)

PM-189-22

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

Calendar Date: July 18, 2022

Decided and Entered: November 10, 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., Clark, Pritzker, Fisher and McShan JJ.

MEMORANDUM AND ORDER ON MOTION

Per Curiam

Respondent was admitted to practice by this Court in 2001. The following year, he was admitted in Georgia, where he most recently listed a business address with the Office of Court Administration. In January 2014, respondent was suspended by this Court for conduct prejudicial to the administration of justice arising from his noncompliance with this state’ attorney registration requirements beginning in 2009 ( Matter of Attorneys in Violation of Judiciary Law § 468–a, 113 A.D.3d 1020, 1037, 984 N.Y.S.2d 134 [3d Dept. 2014] ). Respondent remains suspended to date, and is currently delinquent in his statutory registration obligations for seven consecutive biennial periods (see Judiciary Law § 468–a [5] ; Rules of the Chief Administrator of the Courts [22 NYCRR] § 118.1 ).

In June 2019, the Supreme Court of Georgia disbarred respondent from the practice of law in that state based upon undisputed and substantiated allegations that he had engaged in a scheme spanning multiple years to defraud a client of funds through deceitful misrepresentations, neglected the matters for which he had been hired and improperly withdrew from representation of that client, among other misconduct. Significantly, respondent failed to report the foregoing to either this Court or the Attorney Grievance Committee for the Third Judicial Department (hereinafter AGC) as required by Rules for Attorney Disciplinary Matters ( 22 NYCRR) § 1240.13(d). AGC now 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 as a consequence of his undisputed Georgia misconduct.

Pursuant to the Rules for Attorney Disciplinary Matters ( 22 NYCRR) § 1240.13(c), this Court may impose discipline upon an attorney for "misconduct committed in [a] foreign jurisdiction." As noted by AGC, the misconduct that respondent was disciplined for in Georgia would also constitute misconduct in this state in violation of Rules of Professional Conduct ( 22 NYCRR 1200.0 ) rules 1.3, 1.5, 1.8(a), 1.15(a)-(b), 1.16, and 8.4(c). As respondent has not responded to the motion, we find that he has waived his available defenses and that his misconduct is accordingly established (see Rules for Attorney Disciplinary Matters [ 22 NYCRR] § 1240.13 [b]; Matter of Moses, 206 A.D.3d 1440, 1441, 170 N.Y.S.3d 363 [3d Dept. 2022] ; Matter of Christenson, 200 A.D.3d 1472, 1473, 158 N.Y.S.3d 432 [3d Dept. 2021] ).

In considering the appropriate disciplinary sanction for respondent's misconduct, we are mindful that "the misappropriation of client funds is one of the most serious violations of an attorney's ethical duties" ( Matter of Cresci, 175 A.D.3d 1670, 1672, 107 N.Y.S.3d 188 [3d Dept. 2019] ; see Matter of Anderson, 206 A.D.3d 1431, 1433, 170 N.Y.S.3d 365 [3d Dept. 2022] ; Matter of Castillo, 157 A.D.3d 1158, 1159, 69 N.Y.S.3d 449 [3d Dept. 2018], lv. denied 31 N.Y.3d 906, 2018 WL 2055702 [2018] ). Given respondent's failure to participate in these proceedings, he has presented no mitigating factors for our consideration (see Matter of Park, 188 A.D.3d 1550, 1551, 135 N.Y.S.3d 524 [3d Dept. 2020] ; Matter of Ndi, 186 A.D.3d 916, 917, 129 N.Y.S.3d 199 [3d Dept. 2020] ). On the other hand, respondent's misconduct is further aggravated by, among other factors, his extant suspension in this state stemming from his longstanding and uncured registration delinquency, as well as his failure to provide proper notice of his Georgia misconduct (see Matter of Christenson, 200 A.D.3d at 1474, 158 N.Y.S.3d 432 ; Matter of Ndi, 186 A.D.3d at 917, 129 N.Y.S.3d 199 ). These considerations likewise demonstrate respondent's disregard for his fate as an attorney in New York (see Matter of Park, 188 A.D.3d at 1551, 135 N.Y.S.3d 524 ; Matter of Berglund, 183 A.D.3d 1178, 1179, 123 N.Y.S.3d 303 [3d Dept. 2020] ). In view of the egregious nature of respondent's misconduct, and in order "to protect the public, maintain the honor and integrity of the profession and deter others from committing similar misconduct," we conclude that respondent should be disbarred from the practice of law in this state ( Matter of Cresci...