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Matter of Scudieri - 2019 NY Slip Op 04668, 174 A.D.3d 168, 101 N.Y.S.3d 333 (App. Div.)

Rule:

The standard of proof in attorney disciplinary proceedings is a fair preponderance of the evidence, 22 NYCRR 1240.8(b)(1), with the Court of Appeals of New York pointing out that the privilege to practice law is not a personal or liberty interest, but is more nearly to be classified as a property interest, as to which the higher standard of proof has not been required. 

Facts:

David G. Scudieri was admitted to the practice of law in the State of New York on March 28, 1989. Disciplinary proceedings were instituted by the Attorney Grievance Committee, for failing to provide a written retainer agreement in a domestic relations matter, engaging in conduct that adversely reflects on his fitness as a lawyer when he exchanged sexually explicit text messages and photographs with a client he was representing in a domestic relations matter, and improperly entering into sexual relations with that client during the course of the representation, in violation of Rules of Professional Conduct. Scudieri submitted an answer admitting some facts but denying liability. The Committee then submitted its brief on sanction suggesting a two-year suspension be imposed, and respondent urged a "public admonition" or, at most, a three-month suspension. By cross motion, Scudieri sought an order pursuant to 22 NYCRR 603.8-A(t)(4) disaffirming the report and recommendation of the Referee, which sustained charge 3 of the petition and recommended an 18-month suspension. 

Issue:

Was a sanction of 18 months suspension proper?

Answer:

Yes

Conclusion:

The Court held that an attorney who failed to execute the required retainer agreement in a domestic relations matter, and while the attorney's sexting and courthouse sexual encounter with a client was consensual and isolated in time, the attorney's misconduct contravened New York's strong public policy prohibiting lawyers from engaging in sexual relations with clients in domestic relations matters during the course of their representation, should be suspended for 18 months.

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