Title cannot displayed at this time v. << (2026)

Motion No.2026–04121

In the Matter of

Scott Howard Bernstein,

an attorney and counselor-at-law:

Attorney Grievance Committee for the

First Judicial Department,

Petitioner,

Scott Howard Bernstein

(OCA Atty. Reg. No. 4096673),

Respondent.

Disciplinary proceedings instituted by the Attorney Grievance Committee for the First Judicial Department.  Respondent, Scott Howard Bernstein, was admitted to the Bar of the State of New York at a Term of the Appellate Division of the Supreme Court for the Second Judicial Department on January 22, 2003.

Jorge Dopico, Chief Attorney,

Attorney Grievance Committee, New York

(Kirsten J. Tamayo, of counsel), for petitioner.

Respondent, pro se.

Motion No.2026–04121

In the Matter of Scott Howard Berstein, an attorney

Present – Hon.

Saliann Scarpulla,

Justice Presiding,

Manuel J. Mendez

Marsha D. Michael

Margaret A. Chan

Shlomo S. Hagler,

Justices.

Per Curiam

Respondent Scott H. Bernstein, was admitted to the practice of law in the State of New York by the Second Judicial Department on January 22, 2003 under the name Scott Howard Bernstein.  Respondent maintains a registered address in the First Judicial Department.

By order dated December 19, 2025, the Supreme Court of New Jersey reprimanded respondent for making false representations to two federal courts in motions to withdraw as counsel of record and engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.  In May 2025, respondent entered into a stipulation with a New Jersey District Ethics Committee (DEC) (Stipulation) in which he admitted to having committed professional misconduct and he consented to discipline in the form of a reprimand.

The relevant facts are as follows.  From approximately January 2022 through August 2022, respondent represented R.O. in an adversary proceeding in the U.S. Bankruptcy Court for the Southern District of New York and in a civil RICO action also in the Southern District.  Initially R.O. retained attorney M.P. who brought respondent into the cases in or around January 2022, and thereafter they served as co-counsel to R.O. R.O.'s father was present during telephone calls, copied on emails, and was involved in some legal decision-making, but according to the retainer agreement, R.O. alone was respondent's client.

In July 2022, the bankruptcy court dismissed R.O.'s adversary proceeding.  Following that event, R.O. and respondent disagreed about whether to appeal the dismissal.  While respondent counseled against appealing, R.O. ultimately decided to pursue it.  R.O. asserted that in July 2022 he terminated the services of attorney M.P. On July 28, 2022, respondent filed a motion for reconsideration of the dismissal of the adversary proceeding.  Throughout August 2022, the attorney-client relationship between respondent and R.O. deteriorated.

On August 1, 2022, respondent sent R.O. an invoice for services rendered in connection with the RICO action in the amount of $4,237, due August 31, 2022.  On August 5, 2022, respondent reduced that invoice from $4,237 to $1,864.  The invoice contained handwritten notes reflecting that respondent wrote off $2,372 in fees reducing the bill for services performed in the RICO action to $1,864;  and noted that the amount owed for services performed in the bankruptcy court matter was $14,287.71.  On August 6, 2022, respondent sent R.O. an email in which he indicated that he was attaching “revised invoices for July” which he had “marked up to eliminate significant time expended at [co-counsel M.P.'s] request with respect to the RICO lawsuit.”  Respondent sent another email to R.O. which indicated that he was attaching PDFs of revised invoices with the time for helping M.P. deleted.  Respondent attached a second invoice dated August 6, 2022 with a due date of September 5, 2022, reflecting a balance of $14,287.71.

On August 10, 2022, R.O. wired respondent $6,864.50 from an account at First Republic Bank. An August 10, 2022 email from First Republic to R.O. contained R.O.'s handwritten notations which stated that it includes payment of $5,000 on account for the second invoice and $1,864.50 paid in full for the first invoice.  Later that day, respondent sent an email to R.O. thanking him for the payment, referenced an additional deduction and clarified the amounts still owed on services rendered in connection with the adversary proceeding.  Specifically, respondent wrote, “[p]urely for record keeping purposes and in hopes of avoiding confusion on my end later, I am emailing you my understanding of how the invoice in the amount of

$14,287.71 [sic].  My understanding is as follows;  *agreement to write off $3,380 reached yesterday evening;  *payment of $5,000 received today;  and*remaining balance of *$5,907.91.” Respondent did not dispute that $1,864 of the $6,864 had been allocated to the RICO invoice and $5,000 was to be allocated to the bankruptcy court action.

On August 16, 2022, the bankruptcy court judge adjudicating the adversary proceeding denied respondent's motion for reconsideration of the dismissal of R.O.'s complaint.  On September 1, 2022, R.O.'s father alone called respondent.  During the conversation, R.O.'s father instructed respondent to file a notice of appeal by the following day.  The call became contentious and respondent maintained that R.O.'s father ultimately terminated his legal services on all cases.  Respondent also maintained that R.O.'s father informed him that his son would not pay for legal services already rendered and would not continue paying for legal representation going forward.

Respondent memorialized what he had interpreted as a termination of his services in an email to R.O. and R.O.'s father later that night and copied, among others, his co-counsel M.P. On that same date, R.O. replied by email and vigorously contested the termination and reported that his father had described the conversation differently than how respondent had reported it.  R.O. instructed respondent to file the notice of appeal of the dismissal of the adversary proceeding by the following day.  Respondent filed the notice of appeal to preserve R.O.'s rights.

In September 2022, respondent filed motions to withdraw as counsel from both the adversary proceeding in bankruptcy court and the civil RICO action.  In the motions, respondent represented to the courts that R.O. had terminated his services without also acknowledging that R.O. had contested the termination.  In addition, respondent averred that R.O.'s father had communicated the termination and affirmatively stated that R.O., in a “subsequent email,” “did not dispute” the termination.  Nevertheless, respondent failed to produce any email or other communication where R.O. acknowledged terminating his legal services.

In the adversary proceeding motion, respondent represented that R.O. owed him $15,143, but the evidence indicated that R.O. owed approximately $5,907.  Respondent did not append any invoices or other evidence to his motion to establish the amount owed nor did respondent explain in his declaration how he calculated the amount owed.  In the RICO action, respondent represented that R.O. owed him approximately $4,237, but the record established that R.O. had satisfied the outstanding balance on that matter with his August 10, 2022 payment.  Subsequent to respondent filing the motions to withdraw as counsel, R.O. retained new counsel.

On September 19, 2022, R.O. sent correspondence to both judges adjudicating the motions in order to “set the record straight” as to respondent's representations in his declarations in support of the motions to be relieved as counsel.  In his letters, R.O. disputed that his father had terminated respondent or informed respondent that R.O. had retained a different law firm to represent him in the actions;  he denied owing respondent $4,237;  and he appended several documents, namely, invoices and the August 10, 2022 email from First Republic Bank showing that $6,864.50 was sent to respondent's account on that date.  By September 22, 2022, R.O. was represented by new counsel in the RICO action and respondent agreed to withdraw his motion to be relieved.  At the request of new counsel, respondent also filed a notice of voluntary dismissal of the RICO action.  Neither court ultimately adjudicated respondent's motions to be relieved as counsel.

In his response to R.O.'s grievance before the DEC, respondent denied that he misstated the amount owed to him for legal services and maintained that $15,143.21 was due in connection with the adversary proceeding.  Respondent acknowledged that he had agreed to accept a discounted amount of $16,152.51 in satisfaction of both invoices emailed to R.O. on August 1, 2022, but indicated that the discount was contingent on R.O. paying the discounted amount in full.  Respondent also acknowledged that he received an email from R.O. on August 10, 2022 regarding the wire transfer in the amount of $6,840.50 but maintained that this was not the agreed upon amount of $16,152.51, and during a subsequent phone call R.O. explained that $5,000 was paid toward the invoice for the adversary proceeding and $1,840.50 was paid toward the invoice for the RICO action.  Respondent maintained that in representing that he was owed $15,166.71 in his motion to withdraw from the adversary proceeding, respondent included unbilled time and expenses totaling $5,888 which R.O. had incurred between August 10 and September 2, 2022.  In addition, respondent maintained that he had repeatedly advised R.O. of the unbilled amounts during August and September by phone, and R.O. indicated that respondent should not send him an invoice for those unbilled amounts.

During a January 6, 2025 interview with DEC counsel, respondent acknowledged that he revised the August 5, 2022 invoice reducing the amount owed him for work on the RICO action, but respondent maintained there was a contemporaneous verbal agreement between R.O. and him that the deductions would only be honored if R.O. paid the total amount owed in full.  R.O. maintained that the contemporaneous verbal agreement was consistent with prior agreements with R.O. to discount invoiced professional fees in exchange for R.O.'s prompt payment of invoices but acknowledged that this verbal agreement was never memorialized in any type of formal writing.  Respondent admitted that he did not send R.O. any invoices or other written communications advising R.O. of fees incurred for services rendered between August 10 and September 2, 2022.

In addition, during the interview respondent acknowledged that he may have erred in his accounting and explained that he made the motions during an extremely difficult and stressful time in his professional life.  Respondent described R.O. as a challenging and demanding client who became verbally abusive at the end of their professional relationship and repeatedly accused respondent of malpractice and being a “terrible person.”  Respondent stated that he had consulted with an ethics attorney who had reviewed respondent's email exchange with R.O. and his motions to be relieved as counsel prior to filing them.

Respondent admitted that his actions constituted professional misconduct.  Specifically, by advising the courts adjudicating the adversary proceeding and in the RICO action that R.O. had terminated his services without also acknowledging that R.O. contested that termination, and by affirmatively representing that R.O. “did not dispute” the termination without ever producing the communication in which R.O. purportedly conceded the firing, respondent violated New Jersey Rules of Professional Conduct (NJRPC) rule 3.3(a)(1) (making a false statement of material fact to a tribunal).  In addition, respondent's omission misled the court by implying that both he and his client were in agreement regarding the termination of their professional relationship and he thereby violated NJRPC rule 3.3(a)(5) (failing to disclose to the tribunal a material fact knowing that the omission is reasonably certain to mislead the tribunal).

Respondent also admittedly violated NJRPC rules 3.3(a)(1) and 3.3(a)(5) with respect to his fee related conduct.  In the bankruptcy adversary proceeding, respondent represented that R.O. owed him $15,143, while the evidence indicated that the client owed approximately $5,907.  Not only was the amount incorrect since it did not account for the $3,380 reduction, but respondent also failed to disclose that he included unbilled time when he calculated the outstanding balance.  This omission had the capacity to mislead the court to believe that R.O. had received itemized invoices in the amount of $15,143 and failed to timely pay them.  In the RICO action, respondent represented that he was owed approximately $4,237 even though the record evidenced that R.O. had paid off the outstanding balance on that matter on August 10, 2022.  Respondent compounded these errors by requesting that the court impose a lien on R.O. Respondent also admittedly violated NJRPC rule 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) by mispresenting to the courts adjudicating the motions to withdraw the circumstances surrounding the termination of legal services and the amount of legal fees owed.

In the Stipulation, the parties agreed that there were no aggravating factors.  They also stipulated that there was mitigation, namely:  no prior disciplinary history;  respondent's misconduct was an isolated instance;  no injury to the client;  the circumstances showed little likelihood of repeat offenses;  and respondent was inexperienced as a sole practitioner and the incident at issue occurred during a particularly stressful time in his professional life.  They also agreed that the appropriate sanction for respondent's misconduct was a reprimand or such lesser discipline as the New Jersey Disciplinary Review Board (DRB) deemed appropriate.

A motion for discipline by consent based on the parties' stipulation was filed with the DRB which recommended that respondent be disciplined in accordance therewith.  By an order dated December 19, 2025, the Supreme Court of New Jersey adopted the DRB's recommendation and reprimanded respondent (262 NJ 380 [2025] ).

The Attorney Grievance Committee (AGC) now seeks an order, pursuant to Judiciary Law § 90(2), 22 NYCRR 1240.13, and the doctrine of reciprocal discipline, finding that respondent has been disciplined by a foreign jurisdiction, directing him to demonstrate why discipline should not be imposed in New York for the misconduct underlying his discipline by the Supreme Court of New Jersey, and publicly censuring him, or, in the alternative, sanctioning respondent as this Court deems just and proper under the circumstances.

In a proceeding seeking reciprocal discipline, as here, pursuant to 22 NYCRR 1240.13(b), respondent may raise the following defenses:  (1) lack of notice or opportunity to be heard in the foreign jurisdiction constituting a depravation of due process;  (2) an infirmity of proof establishing the misconduct;  or (3) that the misconduct for which the attorney was disciplined in the foreign jurisdiction does not constitute misconduct in this state (see Matter of Milara, 194 AD3d 108, 110 [1st Dept 2021] ).

None of the aforementioned defenses apply herein because respondent received notice of the allegations against him and, represented by counsel, he chose to enter into a stipulation with the DEC admitting the misconduct at issue and consenting to the

discipline imposed.  In addition, respondent's conduct as described in the stipulation sufficiently supports the misconduct admissions upon which he was disciplined.  Further, respondent's misconduct in New Jersey would also violate New York Rules of Professional Conduct (22 NYCRR 1200.0) rules 3.3(a)(1) and 8.4(c).  Accordingly, because no defenses can prevail, the imposition of reciprocal discipline is appropriate (22 NYCRR 1240.13[c] ).

With respect to the sanction, as a general rule this Court defers to the sanction imposed by the jurisdiction in which the charges were originally brought because the foreign jurisdiction has the greatest interest in fashioning sanctions for misconduct (see Matter of Milara, 194 AD3d at 111;  Matter of Tabacco, 171 AD3d 163 [1st Dept 2019];  Matter of Blumenthal, 165 AD3d 85 [1st Dept 2018] ).  Only rarely does this Court depart from the general rule (see Matter of Karambelas, 203 AD3d 75 [1st Dept 2022];  Matter of McHallam, 160 AD3d 89 [1st Dept 2018] ).

A public censure, as requested by the AGC, is the appropriate reciprocal discipline as it is commensurate with the reprimand imposed by the Supreme Court of New Jersey and in general accord with this Court's precedent involving comparable misconduct (see Matter of Murray–Nolan, – AD3d –, 2026 N.Y. Slip Op 03365 [1st Dept 2026] [reciprocal censure based on censure in New Jersey for, inter alia, submitting documents to the court in client's name as part of fee motion which knowingly contained false statements regarding the client's view of the requested legal fees];  Matter of Myerowitz, 173 AD3d 155 [1st Dept 2019] [censure based on suspension by federal court and censure by New Jersey for knowingly making misrepresentations to federal court] ).

Accordingly, the AGC's motion for an order imposing a public censure pursuant to 22 NYCRR 1240.13 and Judiciary Law § 90(2), should be granted, and respondent publicly censured.

All concur.

Wherefore, it is Ordered that the motion by the Attorney Grievance Committee for the First Judicial Department for Reciprocal Discipline, pursuant to 22 NYCRR 1240.13 and Judiciary Law § 90(2), is granted, and respondent, Scott Howard Bernstein, is publicly censured.

Entered:  September 10, 2026