In re Mahar

200 A.D.3d 1295

157 N.Y.S.3d 613

In the MATTER OF Lawrence Joseph MAHAR, a Suspended Attorney.

(Attorney Registration No. 1138817)

PM–174–21

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

Calendar Date: October 18, 2021

Decided and Entered: December 9, 2021

Monica A. Duffy, Attorney Grievance Committee for the Third Judicial Department, Albany (Lauren S. Cousineau of counsel), for Attorney Grievance Committee for the Third Judicial Department.

Stephen A. Pechenik, Latham, for respondent.

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

MEMORANDUM AND ORDER ON MOTION

Per Curiam.

Respondent was admitted to practice by this Court in 1978 and lists a business address in the Town of Clifton Park, Saratoga County. Respondent was suspended from the practice of law, by May 2019 order of this Court, upon proof that he had engaged in conduct prejudicial to the administration of justice by failing to comply with his biennial registration requirements beginning with the 2010–2011 registration period ( Matter of Attorneys in Violation of Judiciary Law § 468–a, 172 A.D.3d 1706, 1739, 104 N.Y.S.3d 211 [2019] ). Said suspension remains in full force and effect.

The Attorney Grievance Committee for the Third Judicial Department (hereinafter AGC) now moves for an order pursuant to Judiciary Law §§ 90(2) and 750 finding respondent in contempt of this Court's order of suspension. AGC further moves to suspend respondent on an interim basis pursuant to Rules for Attorney Disciplinary Matters ( 22 NYCRR) § 1240.9(a)(3), alleging his failure to cooperate with its investigation into a complaint of professional misconduct. In response, respondent cross-moves to stay the proceeding pursuant to Rules for Attorney Disciplinary Matters ( 22 NYCRR) § 1240.11. AGC has submitted a reply to respondent's cross motion and respondent has submitted a surreply.

We initially find that respondent has failed to establish his entitlement to relief pursuant to Rules for Attorney Disciplinary Matters ( 22 NYCRR) § 1240.11, inasmuch as his submission does not contain sufficient support for his contention that the alleged misconduct underlying this proceeding is attributable to his alleged impairment (see Matter of Pierre, 153 A.D.3d 306, 311, 59 N.Y.S.3d 371 [2017] ). We therefore deny his cross motion and turn first to that part of AGC's motion seeking to find respondent in contempt. We note that that we have treated the manner of contempt contemplated in Judiciary Law § 90(2) as akin to a finding of criminal contempt and therefore require that AGC establish, beyond a reasonable doubt, that a respondent willfully violated a lawful order of this Court (see Matter of Marmor, 71 A.D.3d 30, 31–32, 890 N.Y.S.2d 833 [2009], mod 82 A.D.3d 1717, 918 N.Y.S.2d 916 [2011] ; Matter of Roberts, 245 A.D.2d 951, 952, 667 N.Y.S.2d 78 [1997] ; Matter of Abbott, 175 A.D.2d 396, 398, 572 N.Y.S.2d 467 [1991], appeal dismissed 78 N.Y.2d 1124, 578 N.Y.S.2d 880, 586 N.E.2d 63 [1991] ; see also Matter of Kalpakis, 67 A.D.3d 185, 187, 885 N.Y.S.2d 748 [2009] ). Because a contempt proceeding such as the one before us is conducted in the absence of a hearing, we require that it be supported by uncontroverted evidence of a knowing violation of that order via documentary proof or admissions by the attorney in question (see Matter of Attorneys in Violation of Judiciary Law § 468–a [Campito], 179 A.D.3d 1346, 1347, 116 N.Y.S.3d 791 [2020] ; Matter of Meagher, 178 A.D.3d 1351, 1353, 115 N.Y.S.3d 553 [2019] ).

Respondent concedes that he learned of his suspension in late May 2019 and that he subsequently represented clients in two separate real estate matters (see Matter of Barry, 176 A.D.3d 1474, 1475, 110 N.Y.S.3d 758 [2019] ; Matter of Attorneys in Violation of Judiciary Law § 468–a [Campito], 179 A.D.3d at 1348, 116 N.Y.S.3d 791 ; see also Rules for Attorney Disciplinary Matters [ 22 NYCRR] § 1240.15 [b]). Consistent with respondent's admission, AGC has supported its motion with uncontroverted evidence of his involvement in those matters, providing various documents along with the affirmations of those other attorneys involved in those transactions, which were undertaken after respondent had become aware of his suspension. Further, respondent notes that he filed certain documents with Supreme Court in Rensselaer County, prior to his suspension; however, he admittedly failed to advise the court of his suspension after learning of same (see Matter of Meagher, 178 A.D.3d at 1353, 115 N.Y.S.3d 553 ). Altogether, we find that AGC has presented uncontroverted evidence that respondent engaged in the unauthorized practice of law in contravention of this Court's suspension order. We therefore grant that part of AGC's motion seeking to find respondent in contempt of this Court's order based upon his participation in the aforementioned real estate matters and his failure to advise Supreme Court of his suspension, and further find that such conduct constitutes conduct prejudicial to the administration of justice (see Matter of Barry, 176 A.D.3d at 1475–1476, 110 N.Y.S.3d 758 ; see also Rules of Professional Conduct [ 22 NYCRR 1200.0 ] rule 8.4[d]).

Turning to that part of AGC's motion seeking respondent's interim suspension as a consequence of his failure to cooperate with its investigation, Rules for Attorney Disciplinary Matters ( 22 NYCRR) § 1240.9(a)(3) provides that the mere failure to comply with a lawful demand of AGC during its investigation is sufficient to establish conduct immediately threatening the public interest justifying the respondent's suspension while the investigation proceeds (see Matter of Krinsky, 195 A.D.3d 1149, 1150–1151, 147 N.Y.S.3d 271 [2021] ). Based on the parties' submissions, we find it appropriate to grant that part of AGC's motion seeking to suspend respondent for his failure to cooperate with AGC's investigation. In this respect, it is clear that respondent ignored several notices from AGC seeking a response to a client complaint. Further, while respondent's submission appears to briefly address the substance of the underlying complaint, his responses are insufficient to demonstrate his compliance with AGC's investigation, as he must timely provide his response directly to AGC and allow it to complete its investigatory functions (see Matter of Siegel, 193 A.D.3d 1177, 1178, 143 N.Y.S.3d 756 [2021] ).

In considering the appropriate sanction for respondent's misconduct, we note that his contemptuous conduct is significant as it was undertaken with willful disregard of our order of suspension. That being said, we have considered respondent's remorse and his acknowledgment that his personal circumstances warrant a lengthy separation from the practice of law to allow him to address those issues accordingly. To this point, respondent has taken steps to procure stable nonlegal employment and has also benefited greatly from the assistance of his counsel, who has taken steps to assist respondent both in this matter and in his personal life. Considering the nature of his misconduct and the foregoing factors in...