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In re Monaghan - 295 A.D.2d 38, 743 N.Y.S.2d 519 (App. Div. 2nd Dept. 2002)

Rule:

An attorney, who was publicly censured for his professional misconduct of race-based abuse of opposing counsel by the United States District Court, can be censured by the state court under 22 N.Y.C.R.R. 691.3(d).

Facts:

For his “inappropriate, rude, and crude” conduct towards opposing counsel during a deposition by the United States Department of Labor in a certain proceeding, attorney Thomas C. Monaghan was publicly censured. Based upon those facts, the Grievance Committee for the Second and Eleventh Judicial Districts in New York filed a petition to impose discipline upon Monaghan pursuant to 22 N.Y.C.R.R. 691.3. Respondent Monaghan raised an affirmative defense regarding the infirmity of proof establishing the misconduct, solely with respect to the finding that his misconduct was race-based. Based on the evidence adduced, the Special Referee found Monaghan's "crude and offensive conduct and language to be substantially more likely to have been gender-related rather than race-related." The Special Referee found no evidentiary grounds to support the order of the Petitioner Committee on Grievances. Accordingly, the Special Referee sustained the affirmative defense raised by respondent Monaghan, who then, in turn, filed a motion to confirm the Special Referee’s report.

Issue:

Should the Special Referee’s report, which sustained the affirmative defense raised by the aattorney,  be confirmed?

Answer:

No.

Conclusion:

Based upon the respondent’s stipulation, and the evidence adduced, the state appellate court concluded that the Special Referee erred in sustaining the affirmative defense raised by Monaghan. Accordingly, Monaghan’s motion to confirm the Special Referee’s report was denied. In determining an appropriate measure of discipline to impose, the Court considered the attorney's disciplinary history, which included an admonition and a one-year suspension. Under the totality of circumstances, the Court censured Monaghan.

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