Opinion
M–2306 M–3650
10-02-2018
In the MATTER OF Jay A. GOLDBERG, (admitted as Jay Arthur Goldberg ), an attorney and counselor-at-law: Attorney Grievance Committee for the First Judicial Department, Petitioner, v. Jay A. Goldberg, Respondent.
Jorge Dopico, Chief Attorney, Attorney Grievance Committee, New York, (Kevin P. Culley, of counsel), for petitioner. Michael S. Ross, Esq. for respondent.
Jorge Dopico, Chief Attorney, Attorney Grievance Committee, New York, (Kevin P. Culley, of counsel), for petitioner.
Michael S. Ross, Esq. for respondent.
Judith J. Gische, Justice Presiding, Troy K. Webber, Jeffery K. Oing, Anil C. Singh, Cynthia S. Kern, Justices.
PER CURIAM
Respondent Jay A. Goldberg was admitted to the practice of law in the State of New York by the First Judicial Department on March 27, 1967, under the name Jay Arthur Goldberg. At all times relevant to this proceeding, respondent maintained an office for the practice of law within the First Department.
The Attorney Grievance Committee commenced this disciplinary proceeding by a petition of charges ( Judiciary Law § 90[2], Rules for Attorney Discipline Matters [ 22 NYCRR] § 1240.8 ] ), alleging that respondent was guilty of certain professional misconduct in violation of former Disciplinary Rules ( DR 1–102[a][7] ; 2–107[a][1] and [2] ) and the current New York Rules of Professional Conduct (RCP)( 22 NYCRR 1200.0 ) rules 1.5(g)(1) and (2); and 8.4(h), arising from his failure to disclose to two clients that he was sharing legal fees with former New York State Assembly Speaker Sheldon Silver.
Silver was deemed automatically disbarred based on his federal felony conviction which followed his first criminal trial (Matter of Silver, 138 A.D.3d 123, 28 N.Y.S.3d 370 [1st Dept. 2016] ). After that conviction was reversed on appeal, he did not move for vacatur of this Court's disbarment order. Silver was again found guilty upon retrial.
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The parties agree on the stipulated facts, including the admission to acts of professional misconduct and the relevant factors in mitigation, as well as on the discipline. The parties now jointly move pursuant to 22 NYCRR 1240.8(a)(5) for discipline on consent and request the imposition of a public censure ( 22 NYCRR 1240.8 [a][5] [i-ii] ).
The parties assert that the appropriate discipline to be imposed on respondent should be a public censure (see e.g. Matter of Athari, 93 A.D.3d 153, 937 N.Y.S.2d 916 [4th Dept. 2012] ; Matter of Kuslansky. 230 A.D.2d 104, 654 N.Y.S.2d 396 [2d Dept. 1997] ; Matter of Colleluori, 164 A.D.3d 88, 2018 N.Y. Slip. Op. 05588 [2d Dept. 2018]. In addition, the parties maintain that respondent's misconduct is distinguishable from Matter of Lodes, 118 A.D.3d 54, 985 N.Y.S.2d 108 [2d Dept. 2014] and Matter of Harrison, 282 A.D.2d 176, 724 N.Y.S.2d 889 [2d Dept. 2001] because both matters involved more aggravated misconduct than in this case.
Lastly, the parties contend that a public censure is supported by sections 7.3, 9.31, and 9.32(a)-(e) of the ABA Standards for Imposing Lawyer Sanctions.
In light of respondent's admitted misconduct which was limited to violations of the fee sharing rules, the lack of aggravation, the mitigating factors presented, and the relevant case law, the parties' joint motion for discipline by consent should be granted and respondent is censured. The Committee's petition of charges is denied as moot.
Ordered that the joint motion for discipline by consent is granted, and respondent is publicly censured (M–3650). The Committee's petition of charges is denied as moot (M–2306).
All concur.