IN RE: Thomas O'TOOLE (2004)

Respondent Thomas O'Toole was admitted to the practice of law in the State of New York by the First Judicial Department on February 29, 1988.   Respondent currently maintains an office for the practice of law in Baltimore, Maryland and the Departmental Disciplinary Committee believes that he has not practiced law in New York since 1990 and no longer maintains an office in this State.

The Committee presently petitions this Court for an order pursuant to 22 NYCRR 603.3, suspending respondent for 30 days predicated upon the fact that he was similarly disciplined in the State of Maryland, or in the alternative, sanctioning respondent as this Court deems appropriate.   Respondent has not submitted a response to this charge.

The Maryland Court of Appeals suspended respondent from the practice of law for 30 days for violating MRPC 8.4(b) and (d) which state, in relevant part:

It is professional misconduct for a lawyer to:

(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;  ․

(d) engage in conduct that is prejudicial to the administration of justice․

The “criminal act” respondent was found to have committed was his willful failure to file income tax returns.   The Court of Appeals concluded that as an experienced and competent attorney he was aware of his obligation to make such filings and failed to do so despite warnings from the Comptroller's Office that resulted in the garnishment of his professional accounts in December 2001.   The court found that respondent was guilty of engaging in conduct that was prejudicial to the administration of justice when he failed to file federal and state income tax returns for the years 1998, 1999 and 2000, and when he failed to file Maryland withholding tax forms for his professional corporation, Thomas O'Toole, P.C., for the years 1998, 1999 and 2000.   The Committee correctly argues that this rule parallels the New York Code rules, to wit, DR 1-102(A)(3)-“[a] lawyer or law firm shall not engage in illegal conduct that adversely reflects on the lawyer's honesty, trustworthiness or fitness as a lawyer”;  and DR 1-102(A)(5)-“[a] lawyer or law firm shall not engage in conduct that is prejudicial to the administration of justice” (see Matter of Lillard, 255 A.D.2d 88, 689 N.Y.S.2d 474 [1999], [Maryland attorney's violation of MRPC 8.4(d) constituted violation of DR 1-102(A)(5) ] ).

An attorney who has been disciplined in another State may be disciplined by this Court based on the conduct that gave rise to such discipline.   The Committee correctly asserts that respondent is precluded from raising any defense enumerated in 22 NYCRR 603.3[c] since he had sufficient notice and opportunity to be heard in the Maryland proceeding where he fully participated and was represented by counsel ¹ (22 NYCRR 603.3[c][1] );  that the findings of the Maryland Court of Appeals were fully supported by the record and respondent's admissions (22 NYCRR 603.3[c][2] );  and that the misconduct for which he was disciplined constitutes misconduct in this jurisdiction (22 NYCRR 603.3[c][3] ).

On the issue of the appropriate sanction, it is a generally accepted principle that the jurisdiction where the respondent lived and practiced law at the time of the offense has the greatest interest in the issue and the public policy considerations relevant to such disciplinary actions (Matter of Vohra, 303 A.D.2d 61, 63, 755 N.Y.S.2d 71 [2003] ).   However, we have been reluctant to impose one-month suspensions for “practical reasons” and, instead, we have imposed public censure (see Vohra, supra at 64-65, 755 N.Y.S.2d 71;  Matter of Bieluch, 209 A.D.2d 52, 56, 624 N.Y.S.2d 584 [1995];  Matter of LaSalle, 194 A.D.2d 28, 604 N.Y.S.2d 72 [1993] ).

Accordingly, the Committee's petition should be granted to the extent that respondent is publicly censured for his misconduct pursuant to Section 603.3(a) of the Rules of this Court.

Respondent publicly censured.

FOOTNOTES

1.   The Maryland Court of Appeals' decision was based upon a review of findings of fact and conclusions of law filed by the Circuit Court for Baltimore City following a full evidentiary hearing at which respondent stipulated to most of the allegations.

PER CURIAM.

All concur.