Matter of Laser ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: September 24, 2015 D-64-15
___________________________________
In the Matter of GAIL E.
LASER, an Attorney MEMORANDUM AND ORDER
ON MOTION
(Attorney Registration No. 2206043)
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Calendar Date: September 9, 2015
Before: Lahtinen, J.P., McCarthy, Devine and Clark, JJ.
__________
Monica A. Duffy, Committee on Professional Standards,
Albany (Alison M. Coan of counsel), for Committee on Professional
Standards.
Hilder McCosh P.C., Park City, Utah (Robert K. Hilder
admitted pro hac vice), for Gail E. Laser.
__________
Per Curiam.
Gail E. Laser was admitted to practice by this Court in
1984. She was also admitted to practice in Utah in 2003, where
she maintains an office for the practice of law.
By order dated October 29, 2012, the Ethics and Discipline
Committee of the Supreme Court of Utah ruled that Laser was
guilty of disrespecting the rights of third persons, violating
disciplinary rules through the acts of another and engaging in
conduct prejudicial to the administration of justice in violation
of Utah Rules of Professional Conduct rules 4.4 and 8.4 (a) and
(d). This ruling was premised upon, among other things, Laser's
negligent conduct in instructing her employee – who had access to
another law firm's computer – to acquire information and obtain
evidence from that firm's computer file regarding an opposing
party in a lawsuit. As a sanction, Laser was issued a public
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reprimand. Although Laser filed an appeal of that order with the
Utah Supreme Court, she voluntarily withdrew that appeal prior to
oral argument. Further, Laser admits that she failed to file
with this Court a copy of the Utah disciplinary order within 30
days as required by Rules of the Appellate Division, Third
Department (22 NYCRR) § 806.19 (b).
Subsequently, by motion returnable June 15, 2015, the
Committee on Professional Standards moved pursuant to Rules of
the Appellate Division, Third Department (22 NYCRR) § 806.19 for
an order imposing discipline upon Laser by reason of the
discipline imposed in Utah. Laser thereafter submitted a
response to the Committee's motion in which she, among other
things, raised the defense that she did not receive due process
in the Utah disciplinary proceedings against her (see Rules of
App Div, 3d Dept [22 NYCRR] § 806.19 [d] [1]). At Laser's
request, we have heard her arguments in opposition to the
Committee's motion.
Upon consideration of the facts, circumstances and record
before us, we conclude that Laser has not demonstrated that she
was deprived of due process in the Utah disciplinary proceedings.
While it is true that the Utah Supreme Court recently expressed
concerns about certain of the Utah procedures which, among other
things, can result in an attorney being required to defend
against charges in the later stages of the disciplinary process
that were not fully set forth in the initial notice of informal
complaint, we note that the Court only referred the issue to its
rules committee and did not strike the rules down on due process
grounds (see Johnson v Office of Professional Conduct (775 Utah
Adv Rep 15, ___, 342 P3d 280, 287-288 [2014]). Notably, the
proof herein establishes that Laser – who was represented by
counsel – was aware throughout the proceedings of the conduct for
which discipline was sought and, significantly, she does not
argue that she was deprived of an opportunity to present evidence
in her defense. In any event, inasmuch as Laser concedes that
she deliberately chose to accept the discipline in Utah rather
than pursue her appeal rights, we find Laser's due process claims
to be unpersuasive.
Turning to the appropriate discipline to be imposed, upon
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consideration of all the facts and circumstances, including the
discipline imposed in Utah, we hold that Laser should be censured
in this state (see e.g. Matter of Dimmer, 112 AD3d 1137, 1138
[2013]; Matter of Vega, 106 AD3d 1188, 1188 [2013]; Matter of
Ladler, 40 AD3d 1205, 1206 [2007]; Matter of Welshman, 32 AD3d
1150 [2006]).
Lahtinen, J.P., McCarthy, Devine and Clark, JJ., concur.
ORDERED that the motion of the Committee on Professional
Standards is granted; and it is further
ORDERED that Gail E. Laser is censured.
ENTER:
Robert D. Mayberger
Clerk of the Court