In re Radshaw

213 A.D.3d 1193

183 N.Y.S.3d 647

In the MATTER OF John Jay RADSHAW, a Suspended Attorney.

(Attorney Registration No. 2950335)

PM–36–23

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

Calendar Date: October 31, 2022

Decided and Entered: February 23, 2023

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: Garry, P.J., Lynch, Reynolds Fitzgerald, Ceresia and McShan, JJ.

MEMORANDUM AND ORDER ON MOTION

Per Curiam.

Respondent was admitted to practice in his home state of Connecticut in 1998. He was admitted to practice by this Court in 1999, but was later suspended, for a 90–day term, by July 2015 order of this Court ( Matter of Radshaw, 130 A.D.3d 1139, 13 N.Y.S.3d 618 [3d Dept. 2015] ). He remains so suspended in New York to date. In January 2017, a Connecticut Superior Court imposed a stayed six-month suspension on respondent based upon that Court's determination that he failed to respond to a grievance complaint (see Connecticut Rules of Professional Conduct 8.1 [2]). Respondent's Connecticut law license is currently active.

The Attorney Grievance Committee for the Third Judicial Department (hereinafter AGC) now seeks to impose discipline upon respondent in New York as a consequence of this latest Connecticut misconduct pursuant to Rules for Attorney Disciplinary Matters ( 22 NYCRR) § 1240.13 and Rules of the Appellate Division, Third Department (22 NYCRR) § 806.13. Respondent has not submitted a response to AGC's motion.

Rules for Attorney Disciplinary Matters ( 22 NYCRR) § 1240.13(c) permits us to "discipline [a] respondent for the misconduct committed in [a] foreign jurisdiction." However, "[t]he respondent may file an affidavit stating defenses to the imposition of discipline and raising any mitigating factors" including lack of due process, infirmity of proof establishing the misconduct or that the misconduct in the foreign jurisdiction does not constitute misconduct in New York (Rules for Attorney Disciplinary Matters [ 22 NYCRR] § 1240.13 [b]). To date, respondent has not responded or otherwise replied to AGC's motion and, thus, "he has waived any available defenses and AGC's motion to impose discipline is granted" ( Matter of Hankes , 210 A.D.3d 1282, 1282, 177 N.Y.S.3d 400 [3d Dept. 2022] ; see Matter of Colby , 156 A.D.3d 1215, 1215–1216, 67 N.Y.S.3d 359 [3d Dept. 2017] ). In any event, we note that respondent's conduct in Connecticut would, if perpetrated here, similarly constitute misconduct in New York (see Connecticut Rules of Professional Conduct § 8.1[2]; Rules of Professional Conduct [22 NYCRR] rule 8.4[d] ; see generally Matter of Chan , 126 A.D.3d 1111, 1111, 2 N.Y.S.3d 378 [3d Dept. 2015] ).

Turning next 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 ... 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" ( Matter of Hankes , 210 A.D.3d at 1282–1283, 177 N.Y.S.3d 400 ). In mitigation, we note that respondent made a good-faith effort in resolving the underlying claim with the complainant in Connecticut and did not charge said complainant for his services (see ABA Standards for Imposing Lawyer Sanctions standard 9.32[d]). However, respondent has not presented any additional mitigating circumstances, and, in aggravation, we note respondent's extensive disciplinary history both in this Court and in Connecticut, respondent's failure to report his suspension to this Court as required and his current delinquency in his biennial registration obligation. Accordingly, in order to protect the public, maintain the honor and integrity of the profession, and deter others from committing similar misconduct, we suspend resp...