In re Sablone

211 A.D.3d 1226

179 N.Y.S.3d 486

In the MATTER OF Jonathan SABLONE, an Attorney.

(Attorney Registration No. 4448353)

PM–213–22

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

Calendar Date: August 29, 2022

Decided and Entered: December 8, 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.

Emery, Celli, Brincherhoff, Abady, Ward & Maazel, LLP, New York City (Hal R. Lieberman of counsel), for respondent.

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

MEMORANDUM AND ORDER ON MOTION

Per Curiam.

Respondent was admitted to practice by this Court in 2006 after his admission in his home state of Massachusetts in 1996. In May 2022, respondent was suspended from practice in Massachusetts for one year and a day by the Supreme Judicial Court of Suffolk County. Such discipline was imposed upon stipulated facts establishing that respondent had engaged in fraudulent conduct which also reflected adversely on his fitness as a lawyer (see Massachusetts Rules of Professional Conduct Rule 8.4[c], [h]). Specifically, it was determined that, after personally purchasing a quantity of wine for a continuing legal education (hereinafter CLE) presentation he had organized, respondent thereafter obtained reimbursement for the full purchase price from both the CLE sponsor and his then-employer, a law firm, resulting in a windfall to respondent in the amount of $1,952.85. The Attorney Grievance Committee for the Third Judicial Department (hereinafter AGC) now moves, by order to show cause marked returnable August 29, 2022, 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 his Massachusetts misconduct. In response to the motion, respondent has submitted materials in mitigation, asking this Court to order lenient discipline, or alternatively, the same discipline imposed in Massachusetts.

AGC contends that sanctioning respondent pursuant to the Rules for Attorney Disciplinary Matters ( 22 NYCRR) § 1240.13 and Rules of the Appellate Division, Third Department (22 NYCRR) § 806.13 is appropriate based upon the suspension order entered against him in Massachusetts. In fact, AGC points out that respondent's professional misconduct in Massachusetts also constitutes professional misconduct in New York, inasmuch as the sustained rule violation there is identical to Rules of Professional Conduct ( 22 NYCRR 1200.0 ) rule 8.4(c) and (h).

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." In defense, an attorney may assert that the disciplinary proceedings 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 of discipline in the foreign jurisdiction would not constitute misconduct in New York (see Rules for Attorney Disciplinary Matters [ 22 NYCRR] § 1240.13 [b]). Here, respondent does not assert any defenses to the imposition of discipline in this state, and similarly does not contest the Massachusetts disciplinary proceedings. As such, we grant AGC's motion (see Matter of Tobias, 210 A.D.3d 1181, 1183-84, 176 N.Y.S.3d 881 [3d Dept. 2022] ; Matter of Matemu, 197 A.D.3d 1433, 1434, 151 N.Y.S.3d 649 [3d Dept. 2021] ).

Turning to the issue of the appropriate disciplinary sanction, we are not obligated to impose the same sanction that was imposed by the foreign tribunal, but rather are charged with crafting a sanction that protects the public, maintains the honor and integrity of the profession and deters others from engaging in similar misconduct (see Matter of Yiheng Lou, 206 A.D.3d 1221, 1224, 168 N.Y.S.3d 760 [3d Dept. 2022] ; Matter of Hoines, 185 A.D.3d 1349, 1350, 128 N.Y.S.3d 374 [3d Dept. 2020] ; see also Rules for Attorney Disciplinary Matters [ 22 NYCRR] § 1240.8 [b][2]). While AGC seeks to have respondent's admittedly dishonest conduct be considered an aggravating factor, respondent notes that he did not act with dishonest intent, but rather that his actions were a result of distractions due to personal and health issues (see ABA Standards for Imposing Lawyer Sanctions standards 9.22[c]). Rules of Professional Conduct ( 22 NYCRR 1200.0 ) rule 8.4(c) defines "conduct involving dishonesty, fraud, deceit or misrepresentation" as misconduct but, "[n]onetheless, evidence that an attorney has not acted with venality or dishonesty can appropriately be considered a factor in mitigation" ( Matter of Anderson, 206 A.D.3d 1431, 1433, 170 N.Y.S.3d 365 [3d Dept. 2022] ; see 7 N.Y. Jur 2d Attorneys at Law § 519 ; ABA Standards for Imposing Lawyer Sanctions standard 9.32[b]).

In addition, respondent cites various factors in...