In re Krapacs

189 A.D.3d 1962

138 N.Y.S.3d 290

In the MATTER OF Ashley Ann KRAPACS, an Attorney.

(Attorney Registration No. 5389309)

PM-174-20

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

Calendar Date: November 30, 2020

Decided and Entered: December 24, 2020

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.

Ashley Ann Krapacs, Fort Lauderdale, Florida, respondent pro se.

Before: Garry, P.J., Clark, Aarons, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER ON MOTION

Per Curiam.

Respondent was admitted to practice by this Court in 2016. She lists a business address with the Office of Court Administration in Florida, where she formerly maintained a law practice.¹ In July 2020, respondent was disbarred from the practice of law by the Supreme Court of Florida based upon sustained charges that she had, among other things, engaged in threatening behavior and used online social media to make disparaging remarks about a member of the Judiciary and to engage in an extensive and unjustified public attack against two attorneys ( Florida Bar v. Krapacs, 2020 WL 3869584 [FL Sup. Ct. 2020] ).² Based upon her established misconduct in Florida, 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) § 806.13.³ Respondent has submitted papers in opposition to the motion, asserting in general terms that she was deprived of due process in the Florida disciplinary proceedings and that there was an infirmity of proof establishing her misconduct in that state (see Rules for Attorney Disciplinary Matters [ 22 NYCRR] § 1240.13 [b][1], [2]), to which defenses AGC has submitted a reply with leave of the Court (see Rules of App.Div., 3d Dept [ 22 NYCRR] § 806.13 [c]).

Upon consideration of the facts, circumstances and documentation before us, we conclude that respondent has not established any of the available defenses to the imposition of discipline in this state. Contrary to respondent's arguments, our review of the record fails to support her conclusory allegations of a lack of due process, or that there was an infirmity of proof in the Florida proceedings (see Rules for Attorney Disciplinary Matters [ 22 NYCRR] § 1240.13 [b][1], [2]). Not only was respondent afforded a full disciplinary hearing, where she was permitted to testify and present witnesses, she engaged in extensive motion practice where all of her arguments – even if ultimately rejected – were heard and considered. As for the proof supporting the sustained misconduct, respondent does not deny that she was the author of the inappropriate social media and other communications directed at her perceived adversaries; in fact, her submissions to this Court clearly set forth her apparent entrenched position that her actions were justified and that she is somehow exempt from the disciplinary rules that all licensed attorneys are required to follow. Significantly, the First Amendment does not grant an attorney the right in this state to advance unsubstantiated and baseless criticisms of the Judiciary (see Matter of Holtzman, 78 N.Y.2d 184, 192–193, 573 N.Y.S.2d 39, 577 N.E.2d 30 [1991], cert denied 502 U.S. 1009, 112 S.Ct. 648, 116 L.Ed.2d 665 [1991] ), nor are licensed attorneys permitted to use social media to harass and falsely attack others (see e.g. Matter of Zappin, 160 A.D.3d 1, 3, 73 N.Y.S.3d 182 [2018], appeal dismissed 32 N.Y.3d 946, 84 N.Y.S.3d 81, 108 N.E.3d 1027 [2018], lv denied 32 N.Y.3d 915, 2019 WL 637913 [2019] ; Matter of Keegan, 95 A.D.3d 1560, 944 N.Y.S.2d 771 [2012] ). Accordingly, we conclude that respondent's defenses to the motion are not persuasive and, therefore, her misconduct is deemed established.

Turning our attention to the issue of the appropriate disciplinary sanction (see Matter of Cresci, 175 A.D.3d 1670, 1672, 107 N.Y.S.3d 188 [2019] ), we note that respondent's pattern of misconduct is well documented in the file, as is her lack of any genuine remorse or insight into her poor judgment. The record further demonstrates respondent's continued refusal to acknowledge the impropriety and harmfulness of her conduct and her insistence that all investigations of her misconduct were prompted by corrupt motives (see Matter of McArdle, 167 A.D.3d 1223, 1224, 87 N.Y.S.3d 910 [2018] ; see generally ABA Standards for Imposing Lawyer Sanctions § 9.22). Consequently, we find that the totality of facts and circumstances presented in this matter does not warrant a deviation from the severity of respondent's Florida...