Opposition Brief — Maloney v. Grievance Committee for the Ninth Judicial District of New York

- Supreme Cour, US

No. 01-1881 FILE?

IN THE JUL 23 2802

Supreme Court of the United States

CEE as

————

—_——_

ANDREW G. MALONEY,

Petitioner.

v

GRIEVANCE COMMITTEE FOR THE NINTH JUDICIAL

DISTRICT OF THE STATE OF NEW YORK,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF NEw YORK,

APPELLATE Division : SECOND JUDICIAL DEPARTMENT

BRIEF IN OPPOSITION

Gary L. CASELLA

Chief Counsel

Goria A. BuNzE*

Of Counsel

GRIEVANCE COMMITTEE FOR THE

NINTH JUDICIAL DisTRICT

Attorneys for Respondent

399 Knollwood Road, Suite 200

White Plains, NY 10603

(914) 949-4540

* Counsel of Record

175119 ce}

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

l

QUESTIONS PRESENTED

1. Whether the State of New York Court of Appeals

properly dismissed the attorney’s motion to reargue on the

ground that the order sought to be appealed from does not

finally determine the proceeding within the meaning of the

Constitution of the State of New York?

2. Whether the State of New York Supreme Court,

Appellate Division, which is empowered to oversee the

practice of law in the state, after a full and fair hearing at

which the attorney was represented by counsel of the

attorney’s choice, may disbar the attorney based upon the

unique set of facts and circumstances in the case?

3. Whether the attorney’s counsel’s alleged failure to

submit several documents during the disciplinary proceeding

affected the Appellate Division’s decision to disbar the

attorney?

il

TABLE OF CONTENTS

6 er ear ee

Te OE COE Sook oc eee ce eee

Table of Crted Amtoreties ...... ca cc cee ceeveesces

re er ee

Sea, OE Nok. eae ek

Reasons for Denying the Writ .............0.0+:

I.

The State Of New York Court Of Appeals

Correctly Held That The Order Issued By

The Appellate Division, Second Department,

Dated August 7, 2001, Which Denied Andrew

Maloney’s Motion For Leave To Reargue The

Court’s Earlier Order Disbarring Him From

The Practice Of Law, Is Not A Final Order

Within The Meaning Of The Constitution Of

The State OT New VOOR icc ecccieceavss

II. Petitioner’s Disbarment From The Practice Of

Il.

Law In The State Of New York Did Not

Violate His Right To Equal Protection Of

ee ge re ee rr ae

Petitioner’s Allegation That His Counsel

Failed To Submit Post Hearing Briefs Is Not

True. His Counsel’s Actions Were Proper And

Did Not Materially Prejudice Petitioner’s

CRE bcc ethaensesuaeieeee

cr ee i eRe

ill

TABLE OF CITED AUTHORITIES

Page

Matter of A. Richard Gambino, 205 A.D.2d 212

(2d Dep’t 1994) ....... cee cece eee ee eee e ees 1]

Matter of Clay, 282 N.Y. 140 (1940) .....-..--- 8,9

Matter of Del Bello, 28 A.D.2d 994 (2d Dep’t 1967) . 9

Matter of Flannery, 212 N.Y. 610 (1914) ....---. 8

Matter of Harris, 124 A.D.2d 126 (2d Dep't 1987) 13

Matter of Henry, 221 A.D.2d 32 (2d Dep’t 1996) .. 13

Matter of John H. Wynne, 260 A.D.2d 23 (2d Dep't

es cb she kabeSan ew seeeherdeesees 11

Matter of Kenneth F. Popper, 274 A.D.2d 28

(2d Dep’t 2000) .......-. 2. eee e cece eee eeees 10

Matter of Levy, 261 A.D. 229 (1st Dep’t 1941) .... 8

Matter of Mary Anne Scattaretico-Naber, 250 A.D.2d

334 (2d Dep’t 1998) ........ cece eee eee eeee 11,12

Matter of McFarlane, 197 A.D.2d 197 (2d Dep’t

ner ee 13

Matter of Mix, 274 N.Y. 183 (1937) .....--+++++: 9

Matter of Nulle, 88 A.D.2d 657 (3d Dep’t 1982) .. 8

iv

Cited Authorities

Page

In the Matter of Raymond G. Perez, 223 A.D.2d 330

pa re er ne eer 12

Matter of Robert G. Whiteman and Stephen G.

Gorray, 226 A.D.2d 20 (2d Dep’t 1996) ....... 9

Matter of Robert J. Ponzini, 268 A.D.2d 478

gg a ir ne Tie 10, 11

In the Matter of Salvatore DiMisa, 218 A.D.2d 441 |

Ee SOE oo cc adkas MER eueaeeseweewes 12 :

Matter of William P. Geier, 274 A.D.2d 103 (2d Dep’t :

BE co oa ce cbee ess Natasa a doe eee 12, 13 |

Statutes: ,

New York State Judiciary Law § 90(4)(h) ........ 8

Section 5611 of the New York Civil Practice Law |

I 550 oo a5c eee ee eC Ee as 7 :

—_

Other Authority:

Cohen and Karger, Powers of the Court of Appeals,

SF RRR Perry on rr reer Perr art ire 8

l

PRELIMINARY STATEMENT

This brief is submitted in opposition to the application

of Andrew G. Maloney, Petitioner herein, for a writ of

certiorari. Petitioner disputes the decisions of the State of

New York Supreme Court, Appellate Division, Second

Judicial Department, which disbarred him from the practice

of law and denied his motion to reargue, and the subsequent

decisions of the State of New York Court of Appeals, which

dismissed his various motions for leave to appeal the

Appellate Division’s disbarment order and its order denying

reargument.

STATEMENT OF THE CASE

By order of the State of New York Supreme Court,

Appellate Division, Second Judicial Department, dated and

entered on December 27, 1999, the Grievance Committee

for the Ninth Judicial District, Respondent herein, was

authorized to institute and prosecute a disciplinary proceeding

against Andrew G. Maloney, Petitioner herein. The issues

raised by the disciplinary petition and any answer thereto

were referred to a Special Referee, the Hon. Jerome M.

Becker, a former judge of the State of New York Criminal

and Family Courts, to hear and report, together with his

findings on the issues. The order denied that branch of the

Grievance Committee’s motion seeking Mr. Maloney’s

immediate suspension from the practice of law pending the

outcome of the disciplinary proceeding.

A petition containing 75 charges of professional

misconduct was served upon Mr. Maloney. Charges 43, 71,

74 and 75 were withdrawn during the course of the

disciplinary proceeding, based on newly received evidence.

2

Charges 7, 13, 14, 17, 18 and 20 through 23 were amended

prior to the disciplinary hearing, also based on newly received

evidence. Mr. Maloney admitted virtually all of the factual

allegations contained in the charges but denied that he was

guilty of professional misconduct.

During the course of the disciplinary proceeding

(including at the disciplinary hearing) Mr. Maloney was

represented by three successive counsel, all of whom are well

respected and experienced in attorney disciplinary matters.

At the disciplinary hearing, Mr. Maloney testified on his own

behalf and called three character witnesses. He also submitted

12 character affidavits. After the hearing concluded, both

parties submitted proposed findings to the Special Referee.

After consideration of both parties’ proposed findings,

the Special Referee issued a report sustaining all of the

remaining 71 charges. The Grievance Committee moved to

confirm the Report of the Special Referee. Mr. Maloney’s

counsel cross-moved to confirm the Report in part and

disaffirm it in part, and the Grievance Committee submitted

an affirmation in response, urging that Mr. Maloney’s

counsel’s cross motion be rejected by the court as untimely.

However, the court considered the cross motion despite its

untimeliness, and referenced same in its subsequent decision.

After review of both parties’ submissions, the Appellate

Division, Second Department, sustained 53 of the remaining

71 charges, including charges that Mr. Maloney

misappropriated client funds with which he was entrusted;

entered into an improper business relationship with a

client; breached his agreement to repay, upon request,

an undocumented, interest-free loan from a client’s escrow

funds; made cash withdrawals from his escrow account; failed

3

to maintain and/or produce required bookkeeping records;

commingled persona! funds with client funds; disbursed

escrow checks when he did not have funds on deposit to cover

the checks and/or before the corresponding deposits cleared;

transferred funds from one escrow account to another in order

to cover a negative balance in the receiving account; and

engaged in various other misconduct adversely reflecting on

his fitness as a lawyer. The Appellate Division’s order, dated

April 16, 2001, states that in determining the appropriate

measure of discipline to impose, it considered all the

mitigation offered by Mr. Maloney. Nonetheless, the court

determined that he was “guilty of serious professional

misconduct that warrants his disbarment.”

By motion dated May 16, 2001, Mr. Maloney sought

leave to reargue the Appellate Division’s decision disbarring

him from the practice of law and, upon reargument,

modification of the sanction imposed, as well as a stay of

the sanction pending the Appellate Division’s decision on

his motion. The Grievance Committee submitted an

affirmation in opposition to Mr. Maloney’s motion to reargue,

and a response to his reply.

By decision and order dated August 7, 2001,

the Appellate Division, Second Department, denied

Mr. Maloney’s motion to reargue. On August 14, 2001,

the Grievance Committee served said decision and order on

Mr. Maloney by mail, with notice of entry.

On September 17, 2001, Mr. Maloney served the

Grievance Committee with one copy of a Notice of Motion

and Affidavit in Support of Motion for Leave to Appeal the

Appellate Division’s decision disbarring him, and that court’s

subsequent decision denying his motion to reargue, to the

4

State of New York Court of Appeals. The service was

defective in that it was not timely. The Grievance Committee

has no knowledge of when Mr. Maloney filed his motion

with the State of New York Court of Appeals.

On October 23, 2001, the State of New York Court of

Appeals issued a decision dismissing Mr. Maloney’s motion

for leave to appeal as untimely. On October 31, 2001, the

Grievance Committee served Mr. Maloney with a copy of

the court’s decision.

On November 20, 2001, Mr. Maloney served the

Grievance Committee with his Notice of Motion and

Affidavit in Support of Motion for Leave to Reargue the

Court of Appeals’ October 23, 2001, decision. It should be

noted that said motion requested leave to reargue only that

branch of the decision dismissing Mr. Maloney’s application

to reargue the Decision and Order of the Appellate Division,

Second Department, dated August 7, 2001, which denied

Mr. Maloney’s motion to reargue the disbarment order.

Mr. Maloney’s November 20, 2001, motion did not seek to

reargue the branch of the Court of Appeals’ decision that

dismissed his earlier motion to reargue the disbarment order,

which was dated April 16, 2001.

Consequently, the subsequent decision of the State of

New York Court of Appeals, which was issued on January

15, 2002, dealt only with Mr. Maloney’s “motion for

reargument of so much of [his] prior motion as sought leave

to appeal from an Appellate Division order denying

reconsideration, which was dismissed as untimely by [the

Court of Appeals] on October 23, 2001.” The Court of

Appeals granted the motion for reargument of the Appellate—

Division’s order denying reconsideration of the disbarment

5

order and, upon reargument, dismissed that part of the motion

for leave to appeal upon the ground that the order sought to

be appealed from — i.e., the motion to reargue the disbarment

order — “does not finally determine the proceeding within

the meaning of the Constitution.” Thus, the earlier, October

23, 2001, decision of the Court of Appeals, which dismissed

as untimely Mr. Maloney’s motion for leave to appeal the

underlying disbarment order, was left undisturbed. On

January 18, 2002, the Grievance Committee served the Court

of Appeals’ January 15, 2002, decision on Mr. Maloney by

mail, with notice of entry.

On February 15, 2002, Mr. Maloney served the Grievance

Committee with his Notice of Motion and Affidavit in

Support of Motion for Leave to Reargue the Court of Appeals’

decision dated January 15, 2002. Said service was not timely,

as it was required to be served by February 14, 2002.

The motion was denied by decision of the Court of Appeals,

dated March 26, 2002.

6

REASONS FOR DENYING THE WRIT

o

I.

THE STATE OF NEW YORK COURT OF APPEALS

CORRECTLY HELD THAT THE ORDER ISSUED BY

THE APPELLATE DIVISION, SECOND DEPART-

MENT, DATED AUGUST 7, 2001, WHICH DENIED

ANDREW MALONEY’S MOTION FOR LEAVE TO

REARGUE THE COURT’S EARLIER ORDER

DISBARRING HIM FROM THE PRACTICE OF LAW,

IS NOT A FINAL ORDER WITHIN THE MEANING OF

THE CONSTITUTION OF THE STATE OF

NEW YORK.

In the motion before this Court, Andrew Maloney,

Petitioner herein, argues that the State of New York Court of

Appeals decision dated January 15, 2001, erred in holding

that the Decision & Order issued by the Appellate Division,

Second Department, dated August 7, 2001, which denied his

motion for leave to reargue the Appellate Division’s earlier

Opinion & Order, dated April 16, 2001, disbarring him from

the practice of law, “does not finally determine the proceeding

within the meaning of the Constitution.” His argument is

fallacious.

As set forth in greater detail supra in the Grievance

Committee’s “Statement of the Case,” Mr. Maloney never

moved to reargue that branch of the Court of Appeals

decision, dated October 23, 2001, which denied his prior

motion for leave to reargue the Appellate Division’s

disbarment order. Rather, he moved to reargue only that

branch of the decision that denied him leave to appeal from

the Appellate Division’s order denying reargument of its

disbarment order.

aa

7

As the Court of Appeals determined in its January 15,

2002 decision, the Appellate Division’s Decision and Order,

dated August 7, 2001, which denied Mr. Maloney’s motion

for leave to reargue the disbarment order, “does not finally

determine the proceeding within the meaning of the

Constitution.” Rather, the underlying disbarment order finally

determined the matter within the meaning of the Constitution,

and Mr. Maloney never sought leave to reargue the

disbarment order itself. Thus, Mr. Maloney failed to exhaust

his procedural remedies in the courts below.

The definition of when an Appellate Division order is

deemed final (and therefore is subject to review) is found in

Section 5611 of the New York Civil Practice Law and Rules.

Section 5611 states that an order shall be considered a final

one only if it “disposes of all the issues in the action,” and

that “a subsequent appeal may be taken only from that [final]

order and not from any judgment or order entered

pursuant to it” [emphasis added]. In Mr. Maloney’s case,

the disbarment order was the Appellate Division’s final order

disposing of all the issues in the action, and the subsequent

order denying leave to appeal was entered pursuant to the

disbarment order. Thus, no appeal can lie from the denial of

Mr. Maloney’s motion for reargument of the disbarment order

and, despite Mr. Maloney’s far-fetched arguments to the

contrary, the Court of Appeals correctly determined in its

decision, dated January 15, 2002, that the order from which

Mr. Maloney sought to appeal does not finally determine the

proceeding within the meaning of the Constitution and,

accordingly, was not subject to review.

§

8

Il.

PETITIONER’S DISBARMENT FROM THE

PRACTICE OF LAW IN THE STATE OF NEW YORK

DID NOT VIOLATE HIS RIGHT TO EQUAL

PROTECTION OF THE LAWS.

The sanction of disbarment imposed upon Andrew

Maloney, Petitioner herein, by the State of New York Supreme

Court, Appellate Division, Second Judicial Department,

is not excessive or a violation of equal protection, as he

claims. It is solely within the discretion of the Appellate

Divisions of the State of New York Supreme Court to

determine appropriate sanctions after reviewing each

disciplinary matter individually and carefully weighing each

unique set of facts and circumstances, being mindful that

one of the clear purposes of such disciplinary sanctions is to

preserve public confidence in the legal profession. See-Matter

of Nulle, 88 A.D.2d 657 (3d Dep’t 1982); Matter of Levy,

261 A.D. 229 (1st Dep’t 1941); Matter of Flannery, 212 N.Y.

610 (1914); New York State Judiciary Law § 90(4)(h).

The severity of the sanction imposed has been

appropriately viewed as a question of fact, soundly within

the discretion of the Appellate Divisions. Cohen and Karger,

Powers of the Court of Appeals, § 108, pp. 452-453.

Accordingly, the Appellate Division’s decision in Petitioner’s

case should not be questioned unless it can be shown that

the sanction imposed constitutes an abuse of discretion as a

matter of law. Cohen and Karger, supra at § 459. Although

Petitioner contends that such is the case herein, the State of

New York Court of Appeals has rendered such a finding in

an attorney disciplinary matter only where it found there was

no evidence to sustain the charges of misconduct. Matter of

9

Clay, 282 N.Y. 140 (1940); Matter of Mix, 274 N.Y. 183

(1937); Matter of Del Bello, 28 A.D.2d 994 (2d Dep’t 1967).

Such clearly is not the case in Petitioner’s matter.

Petitioner argues that the New York courts have been

inconsistent in imposing disciplinary sanctions in cases of

similar misconduct. In support of his argument, Petitioner

cites several cases wherein the court censured attorneys, and

several cases wherein the court imposed suspensions of

varying length for misconduct that Petitioner apparently

views as analogous in severity to his own. However, all the

cases cited by Petitioner have widely varying fact patterns,

both from each other and from the facts at issue in Petitioner’s

disciplinary proceeding. Rather than having the intended

effect of demonstrating the unfairness of Petitioner’s

disbarment, a reading of the cited cases demonstrates that

the Appellate Divisions, in the interests of fairness and

justice, review each matter individually and carefully weigh

each unique set of facts and circumstances before reaching a

conclusion as to an appropriate sanction.

Each of the cases cited by Petitioner is distinguishable

on the facts, including, for example, Matter of Robert G

Whiteman and Stephen G. Gorray, 226 A.D.2d 20 (2d Dep’t

1996). In Whiteman and Gorray, the court sustained only

six charges of professional misconduct, only one of which

involved an escrow violation, as opposed to Petitioner’s case,

wherein the vast majority of the fifty-three charges sustained

by the Appellate Division involved escrow violations.

In deciding to censure the attorneys in Whiteman and Gorray,

the court considered, among other mitigating factors,

“the serious medical and personal problems besetting Gorray

and his family” and that neither attorney had a prior

disciplinary history. In contrast, Petitioner offered no medical

10

or personal problems to mitigate his proven misconduct,

and he previously had been issued a letter of admonition for,

inter alia, failing to use proper care to safeguard the interests

of his client.

The facts in Matter of Kenneth F. Popper, 274 A.D.2d

28 (2d Dep’t 2000) are also distinguishable from those at

issue in Petitioner’s case. In Popper, the court sustained only

three charges of attorney misconduct, all of which related to

one isolated incident in which the attorney mistakenly

believed that he had received the total amount in settlement

of a particular matter, which led him to disburse related funds

prematurely. In contrast, the Appellate Division sustained

fifty-three charges against Petitioner, relating to a pervasive

pattern of professional misconduct over a period of years,

including the serious charges that he repeatedly converted

escrow funds. Popper is also distinguishable in terms of

mitigating circumstances. The court found that Popper

suffered from extreme emotional stress, which led the court

to conclude that his attention to detail had been diminished,

unlike Petitioner herein, who presumably was in full

possession of his faculties at all times at issue. Popper also

had an unblemished disciplinary history, unlike Petitioner

herein. Accordingly, the court censured Popper “[i}n light of

these particular and unique circumstances” [emphasis

added].

In the Matter of Robert J. Ponzini, 268 A.D.2d 478 (2d

Dep’t 2000), the court sustained thirteen escrow-related

charges stemming from the attorney’s ex-partner’s theft of

escrow funds and imposed the sanction of disbarment.

Upon reargument, the court found the disbarment was

excessive discipline based upon “the peculiar circumstances

of this case” [emphasis added] and substituted a one-year

1]

suspension for the disbarment it had previously imposed.

The circumstances in Petitioner’s case are completely at

variance with the circumstances in Ponzini — it is Petitioner

herein, not his partner, who converted clients’ escrow funds,

among other misconduct.

In the Matter of John H. Wynne, 260 A.D.2d 23 (2d Dep’t

1999), the court sustained five charges of misconduct, only

one of which involved conversion of funds entrusted to the

attorney as a fiduciary. As in the other cases cited by

Petitioner, and unlike Petitioner’s case, the attorney had a

previously unblemished disciplinary record. Although the

court’s decision did not provide details, it stated, among other

things, that the attorney had a “weakened physical and mental

condition” and was under duress at the time.

In the Matter of A. Richard Gambino, 205 A.D.2d 212

(2d Dep’t 1994), wherein the court suspended Gambino from

the practice of law for one year, the facts are distinguishable

from those in Petitioner’s case. The charges involved

“technical” violations of the disciplinary rules regarding

escrow accounts, which did not threaten the integrity of the

funds in the account. None of the seven charges sustained by

the court involved the conversion of escrow funds, and

Gambino had no significant disciplinary history.

In the Matter of Mary Anne Scattaretico-Naber,

250 A.D.2d 334 (2d Dep’t 1998), the court censured the

attorney after sustaining five charges of professional

misconduct. Here, too, the facts are distinguishable from

those in Petitioner’s case. The charges against Scattaretico-

Naber involved one isolated incident wherein she disbursed

12

more funds than she had on deposit for the benefit of a client,

and she covered the overdraft with personal funds. She had

no disciplinary history.

Petitioner argues that he was denied his right to equal

protection of the law and should not have been disbarred

because New York courts typically disbar attorneys only when

they have committed escrow violations to the detriment of

their clients. Petitioner cites Jn the Matter of Salvatore

DiMisa, 218 A.D.2d 441 (2d Dep’t 1996) in support of his

argument. It is true that DiMisa failed to repay escrow funds

to two clients, but he was disbarred because he “breached

his fiduciary obligation to maintain escrow accounts intact,”

id. at 445, not because he failed to repay his clients. Petitioner

also cites Jn the Matter of Raymond G. Perez, 223 A.D.2d

330 (2d Dep’t 1996), but the attorney in Perez was disbarred

“on default,” id. at 331.

Petitioner’s argument that he was denied his right to

equal protection conveniently ignores the plethora of cases

in which the Appellate Divisions imposed the sanction of

disbarment for misconduct similar to, or arguably less

egregious than, Petitioner’s. See, e.g., Matter of William P.

Geier, 274 A.D.2d 103 (2d Dep’t 2000). In Geier,

which Petitioner inexplicably cites as an example of

misconduct more egregious than his own, the court disbarred

the attorney although it sustained only a single charge against

him — i.e., that he converted $4,250 of a $29,500 down

payment with which he had been entrusted for the benefit of

his clients, the sellers of a home, by allowing the balance in

his escrow account to fall below the amount he was required

to be holding. Geier made full restitution to his clients, so

they were not harmed by his conversion. In Petitioner’s case,

the court found that he made numerous conversions of clients’

13

escrow funds under fact patterns, the essential elements of

which are virtually identical to those in Geier. Petitioner,

too, eventually made restitution to his clients, but only after

he repeatedly allowed the balance in his escrow account to

fall below the amounts he was required to be holding on his

clients’ behalf. Moreover, Geier presented the court with

more compelling mitigation than Petitioner herein, including

a lack of any significant disciplinary history. In sum,

Petitioner committed the same misconduct at issue in Geier,

but repeatedly and over a period of years, with less mitigation.

How then can Petitioner claim that disbarment was warranted

in Geier’s case, but not in his own, thus violating his right to

equal protection of the law?

Petitioner further claims that he should not have been

disbarred because he “lacked venality.” In fact, the Appellate

Divisions repeatedly have concluded that the absence of

venality will not justify or otherwise excuse misconduct of

the type engaged in by Petitioner herein. Such misconduct

has been viewed as a serious violation of an attorney’s

fiduciary responsibilities, which undermines the public’s trust

in the Bar and fully warrants the ultimate sanction of

disbarment absent unusual mitigating circumstances.

See, e.g., Matter of Henry, 221 A.D.2d 32 (2d Dep’t 1996);

Matter of McFarlane, 197 A.D.2d 197 (2d Dep’t 1994);

Matter of Harris, 124 A.D.2d 126 (2d Dep’t 1987).

The Grievance Committee respectfully submits that, in

Petitioner’s case, the Appellate Division appropriately

exercised its discretion by imposing the sanction of

disbarment, based upon the unique set of facts and

circumstances of the case. The court’s decision to disbar

Petitioner, after review and consideration of the extensive

record in the case, reflects the court’s assessment of the

14

egregiousness of his misconduct. Moreover, although

Petitioner cloaked in equal protection language certain of

the issues raised in his petition to this Court, they actually

are questions of fact properly determined by the courts below.

In sum, Petitioner has failed to present any substantial

Constitutional issues, including those of equal protection,

that warrant review by this Court.

III.

PETITIONER’S ALLEGATION THAT HIS

COUNSEL FAILED TO SUBMIT POST HEARING

BRIEFS IS NOT TRUE. HIS COUNSEL’S ACTIONS

WERE PROPER AND DID NOT MATERIALLY

PREJUDICE PETITIONER’S CASE.

Andrew Maloney, Petitioner herein, claims that his

attorneys made material omissions amounting to “ineffective

assistance of counsel.” None of Mr. Maloney’s claims is true.

It should be noted that Mr. Maloney successively retained

and discharged three separate law firms during the course of

the disciplinary proceeding, all of which have extensive

experience in handling attorney disciplinary matters.

Mr. Maloney’s allegation that two of these well regarded

firms, in succession, failed to submit “credible documentary

evidence at trial that would have exculpated him from several

of the pending charges,” and additional characters letters that

he provided to counsel strains credulity.

With respect to the first allegation, if Mr. Maloney

had provided his counsel with documentary evidence that

refuted “several” (unspecified) charges, as he claims,

his experienced counsel certainly would have offered it

15

in evidence. With respect to the second allegation,

Mr. Maloney’s counsel submitted twelve character letters,

in due course, which were admitted in evidence. Mr. Maloney

admits in the instant petition that he did not provide the

contested additional character letters to his counsel until

“subsequent to trial” [emphasis added]. He also claims that

his then counsel failed to submit “several critical pieces” of

documentary evidence to the court after the hearing was

concluded. With all due respect, Mr. Maloney knows, or

should know, that it is wholly inappropriate and improper to

put new evidence before the court, ex post facto, after the

proceeding has been concluded.

Assuming arguendo the accuracy of Petitioner’s

allegations against his attorneys, their respective failures to

submit the documents at issue almost certainly would not

have affected the court’s decision on the charges. Whether

Petitioner belatedly disbursed escrow funds, after having been

charged with his failure to do so, would not have been

information relevant to, or determinative of, the few

unspecified charges. Moreover, Petitioner’s counsel

submitted 12 character letters during the proceeding. It is

extremely unlikely that the alleged failure to submit “several”

other character letters would have affected the Appellate

Division’s ultimate decision to disbar Petitioner.

Mr. Maloney also falsely claims that his counsel failed

to submit proposed findings to the Special Referee. As is set

forth in the Report of the Special Referee, at page 10, at the

conclusion of the hearing the matter was adjourned to

May 24, 2000, for the mutual exchange and filing of proposed

findings and conclusions. Said date was adjourned upon

consent to June 14, 2000. However, Mr. Maloney changed

counsel again on or about June 13, 2000, and the date for the

16

mutual exchange and filing of proposed findings and

conclusions, was again adjourned, to July 12, 2000.

The Grievance Committee was served with a copy of

Mr. Maloney’s counsel’s proposed findings on the adjourned

return date, July 12, 2000, along with a copy of the letter

reflecting transmittal to the Special Referee.

Proposed findings in the context of a disciplinary

proceeding are intended to persuade the Special Referee that

the evidence supports a finding in favor of the party and to

provide the Special Referee with findings that he/she can

adopt if he/she is so persuaded. In Mr. Maloney’s case, the

Special Referee obviously was persuaded that the evidence

supported the proposed findings submitted by the Grievance

Committee, and he issued a Report adopting same on or about

July 19, 2000. The Referee could instead have adopted the

proposed findings submitted by Mr. Maloney’s counsel if he

had found Mr. Maloney’s position to be credible or supported

by the evidence. He obviously did not do so. The fact that

the Referee was not persuaded by Mr. Maloney’s counsel’s

proposed findings, and thus did not adopt them, does not

mean that his counsel failed to submit them to the Referee.

After the Special Referee issued the report sustaining

the charges, the Grievance Committee moved in the Appellate

Division, Second Department, for its confirmation.

Mr. Maloney falsely claims that his counsel failed to respond

to said motion. As is clearly reflected in the record below,

the return date on the Grievance Committee’s motion to

confirm was August 25, 2000. Mr. Maloney’s counsel

requested several adjournments, at least through September

29, 2000. The Grievance Committee has no information

regarding whether Mr. Maloney’s counsel was granted

additional adjournments. In any event, he submitted a cross

motion on or about December 11, 2000.

17

Regardless of whether or not the cross motion was timely,

its contents unquestionably were considered by the Appellate

Division in reaching its April 17, 2001, decision to disbar

Mr. Maloney, perhaps because of Mr. Maloney’s counsel’s

intervening illness, which, upon information and belief, was

serious and prolonged. The language of the decision clearly

reflects that the court considered the cross motion, in that it

makes a specific reference to it and notes the various

mitigating factors that Mr. Maloney asks therein that the court

consider in determining the appropriate measure of discipline

to impose.

The Grievance Committee categorically denies

Petitioner’s allegation that it wrongfully provided the

Appellate Division with portions of the transcripts of his

depositions that were to be redacted. As can be determined

from the list of exhibits included in the record below, the

transcripts of Petitioner’s depositions [PX-9 & PX -10] were

redacted as stipulated between counsel.

The Grievance Committee further categorically denies

Petitioner’s allegation that it provided the Appellate Division

with “several items” that were to be excluded from the record.

It cannot respond with more specificity because Petitioner

failed to identify the documents at issue.

18

CONCLUSION

The issues presented by Petitioner do not reach the

constitutional dimensions worthy of address by the Supreme

Court of the United States. Although Petitioner couched his

arguments in constitutional due process and equal protection

language, in fact, he simply disputes the factual findings

regarding his gross misuse of clients’ funds, and the legal

determinations made by the courts below. None of the

arguments advanced by Petitioner involves an important

question of federal law that has not been, but should be,

addressed by this Court, and its further consideration of

Petitioner’s claims is not warranted. Accordingly, the

Grievance Committee respectfully urges that the petition for

a writ of certiorari should be denied.

Respectfully submitted,

Gary L. CASELLA

Chief Counsel

Goria A. BUNZE*

Of Counsel

GRIEVANCE COMMITTEE FOR THE

NINTH JuDICIAL District

Attorneys for Respondent

399 Knollwood Road, Suite 200

White Plains, NY 10603

(914) 949-4540

* Counsel of Record