IN RE: ATTORNEYS IN VIOLATION OF JUDICIARY LAW § 468-A.

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

IN RE: ATTORNEYS IN VIOLATION OF JUDICIARY LAW § 468-A. Attorney Grievance Committee for the Third Judicial Department, Petitioner; v. Jonathan Paul Holtz, Respondent. (Attorney Registration No. 4606273)

PM-90-20

Decided: July 16, 2020

Before:  Garry, P.J., Lynch, Mulvey, Aarons and Reynolds Fitzgerald, JJ. Monica A. Duffy, Attorney Grievance Committee for the Third Judicial Department, Albany, for Attorney Grievance Committee for the Third Judicial Department. Jonathan Paul Holtz, Scotch Plains, New Jersey, respondent pro se.

MEMORANDUM AND ORDER ON MOTION

Respondent was admitted to practice by this Court in 2008 and currently lists a business address in New Jersey, where he is also admitted.  Respondent was suspended from the practice of law by May 2019 order of this Court for conduct prejudicial to the administration of justice arising from his failure to comply with his attorney registration obligations beginning in 2010 (Matter of Attorneys in Violation of Judiciary Law § 468–a, 172 A.D.3d 1706, 1728, 104 N.Y.S.3d 211 [2019];  see Judiciary Law § 468–a [5];  Rules of Professional Conduct [22 NYCRR 1200.0] rule 8.4[d] ).  He cured his registration delinquency in December 2019 and now applies for reinstatement, further requesting a waiver of the requirement that he successfully complete the Multistate Professional Responsibility Examination (hereinafter MPRE) as part of his motion (see Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.16;  Rules of App.Div., 3d Dept [22 NYCRR] § 806.16[a] ).  The Attorney Grievance Committee for the Third Judicial Department (hereinafter AGC) opposes the motion, raising concerns regarding respondent's application and compliance with the order of suspension.1  In reply, respondent submits correspondence and additional documentation addressing AGC's concerns.

“All attorneys seeking reinstatement from suspension must establish, by clear and convincing evidence, that (1) he or she has complied with the order of suspension and the Rules of this Court, (2) he or she has the requisite character and fitness for the practice of law, and (3) it would be in the public's interest to reinstate the attorney to practice in New York” (Matter of Attorneys in Violation of Judiciary Law § 468–a [Nenninger], 180 A.D.3d 1317, 1317–1318, 116 N.Y.S.3d 920 [2020] [citations omitted] ).  Initially, given the length of his suspension, respondent has properly submitted a duly-sworn form affidavit consistent with the form set forth in appendix C to the Rules for Attorney Disciplinary Matters (22 NYCRR) part 1240, along with the appropriate attachments as delineated therein (see Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.16[b];  compare Matter of Attorneys in Violation of Judiciary Law § 468–a [Hughes–Hardaway], 152 A.D.3d 951, 952, 55 N.Y.S.3d 680 [2017] ).

As to respondent's compliance with the order of suspension, he attests that he has not practiced law in New York since his suspension and provides proof of his employment as a trial attorney with a law firm in New Jersey.  Correspondence submitted by the law firm in support of respondent's motion confirms that he has not engaged in the practice of law in New York. AGC raises concerns regarding the law firm's website during the relevant time period, which included respondent's admission to the New York bar in a general list of credentials without noting his suspension.  Notably, however, the website's lengthy description of respondent's legal career referenced only his activities in New Jersey.  Respondent explains that the failure to update the website following his suspension was inadvertent, and he submits proof that the website has since been updated accordingly.  As to his failure to submit his 2019 tax return, he asserts that he received an extension to file it and, thus, it does not yet exist.  Regarding his failure to file an affidavit of compliance (see Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.15[f];  Rules for Attorney Disciplinary Matters [22 NYCRR] part 1240, appendix C, ¶ 21), we find that his statements in his appendix C affidavit submitted as part his application for reinstatement have cured this defect (see Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.15[c];  part 1240, appendix C;  Matter of Attorneys in Violation of Judiciary Law § 468–a [Hui–Ju Wang], 183 A.D.3d 1225, 1227, ––– N.Y.S.3d –––– [2020];  Matter of Attorneys in Violation of Judiciary Law § 468–a [Alimanova], 175 A.D.3d 1767, 1768, 108 N.Y.S.3d 556 [2019] ).  In view of the foregoing, we find that respondent has demonstrated by clear and convincing evidence that he has complied with the order of suspension and the rules governing the conduct of suspended attorneys (see Matter of Attorneys in Violation of Judiciary Law § 468–a [Nenninger], 180 A.D.3d at 1317–1318, 116 N.Y.S.3d 920;  see also Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.15;  compare Matter of Barry, 176 A.D.3d 1474, 1475–1476, 110 N.Y.S.3d 758 [2019] ).

The length of respondent's suspension further required him to submit proof of passage of the MPRE within one year prior to applying for reinstatement (see Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.16[b] ), a requirement for which he now requests a waiver.  The purpose of the MPRE requirement is to “reemphasize[ ] the importance of ethical conduct to attorneys who have been subjected to serious public discipline, and it also reassures the general public that such attorneys have undergone retraining in the field of professional responsibility” (Matter of Cooper, 128 A.D.3d 1267, 1267, 8 N.Y.S.3d 924 [2015] ).  As such, a request for a waiver of this requirement must be supported by a demonstration of “good cause” such as assurances “that additional MPRE testing would be unnecessary under the circumstances” (Matter of Attorneys in Violation of Judiciary Law § 468–a [Alimanova], 156 A.D.3d 1223, 1224, 67 N.Y.S.3d 672 [2017] ).  As we have previously noted, “proof of analogous professional responsibility course work or retraining in the attorney's home jurisdiction might, under the proper circumstances, justify a waiver” (id.).  Here, respondent submitted proof of his extensive legal ethics training related to his participation as a court-appointed attorney investigator on a New Jersey ethics committee.  Further, respondent's suspension was based solely upon his failure to comply with registration requirements (Matter of Attorneys in Violation of Judiciary Law § 468–a, 172 A.D.3d 1706, 1707–1708, 104 N.Y.S.3d 211 [2019] ), and there is no indication that he has ever been the subject of other discipline in this or any other jurisdiction.  Under the circumstances presented, respondent has provided sufficient assurances warranting a waiver of the MPRE requirement (compare Matter of Attorneys in Violation of Judiciary Law § 468–a [Alimanova], 156 A.D.3d at 1224, 67 N.Y.S.3d 672).

In view of respondent's application in its entirety, we also find that respondent has sufficiently demonstrated the requisite character and fitness for the practice of law and that it would be in the public's interest to reinstate him to the practice of law in New York (see Matter of Attorneys in Violation of Judiciary Law § 468–a [Hui–Ju Wang], 183 A.D.3d at 1227–1228, ––– N.Y.S.3d ––––;  Matter of Attorneys in Violation of Judiciary Law § 468–a [Nenninger], 180 A.D.3d at 1318, 116 N.Y.S.3d 920).  Accordingly, we grant respondent's motion and reinstate him to the practice of law.

ORDERED that respondent's motion for reinstatement is granted;  and it is further

ORDERED that respondent is reinstated as an attorney and counselor-at-law in the State of New York, effective immediately.

FOOTNOTES

1.   The Lawyer's Fund for Client Protection has advised that there are no open claims against respondent.

Per Curiam.

Garry, P.J., Lynch, Mulvey, Aarons and Reynolds Fitzgerald, JJ., concur.

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