Matter of Edelstein , 40 N.Y.S.3d 293 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: November 10, 2016 D-63-16
___________________________________
In the Matter of MARK EDELSTEIN,
an Attorney. MEMORANDUM AND ORDER
ON MOTION
(Attorney Registration No. 4645438)
___________________________________
Calendar Date: October 11, 2016
Before: Egan, J.P., Rose, Devine, Clark and Mulvey, JJ.
__________
Monica A. Duffy, Attorney Grievance Committee for the Third
Judicial Department, Albany (Sarah A. Richards of counsel), for
Attorney Grievance Committee for the Third Judicial Department.
Mark Edelstein, Altus, Oklahoma, respondent pro se.
__________
Per Curiam.
Respondent is a resident of Oklahoma who was admitted to
practice by this Court in 2008. He was previously admitted to
practice in New Jersey in 2007.
By order filed January 13, 2016, respondent was suspended
from the practice of law for three months by the Supreme Court of
New Jersey due to stipulated findings that he had, among other
misconduct, failed to properly supervise a nonlawyer employee who
had misappropriated client funds and had made misrepresentations
concerning his partnership in a New Jersey law firm (Matter of
Edelstein, 224 NJ 31, 128 A3d 692 [2016]). The Attorney
Grievance Committee for the Third Judicial Department
(hereinafter AGC) accordingly now moves to impose discipline upon
respondent in this state based upon the discipline imposed in New
Jersey (see Uniform Rules for Attorney Disciplinary Matters [22
-2- D-63-16
NYCRR] § 1240.13). Respondent filed opposition to AGC's motion
in which he contends, among other things, that he did not receive
due process in the New Jersey disciplinary proceedings against
him (see Uniform Rules for Attorney Disciplinary Matters [22
NYCRR] § 1240.13 [b] [1]; [c]), to which response AGC has
replied.
Upon consideration of the facts, circumstances and record
before us, we conclude that respondent has not demonstrated that
he was deprived of due process in the New Jersey disciplinary
proceedings. Contrary to respondent's assertion, a review of the
disciplinary stipulation that he entered into with the New Jersey
Office of Attorney Ethics clearly establishes that it was not
conditioned on the imposition of a censure. The stipulation
unequivocally provided that, upon execution, the matter would
proceed directly to the Disciplinary Board of the Supreme Court
of New Jersey for the sole purpose of determining the extent of
final discipline to be imposed. Respondent was then provided
with an opportunity to present relevant and material evidence in
mitigation and, rather than proceed in such a manner, he elected
to execute a written waiver wherein he waived oral argument
before the Disciplinary Board and agreed to the conclusions and
recommendations of the trier of fact. Accordingly, we find
respondent's due process claim to be unpersuasive and grant AGC's
motion.
Turning to the appropriate discipline to be imposed, in
consideration of the facts and circumstances presented, the
discipline imposed in New Jersey and in order to protect the
public, maintain the honor and integrity of the profession and
deter others from committing similar misconduct, we hold that
respondent should be suspended from the practice of law in this
state for a period of three months, effective immediately (see
Matter of Barber, 74 AD3d 1565, 1565 [2010]; see generally
Uniform Rules of Attorney Disciplinary Matters [22 NYCRR]
§ 1240.8 [b] [2]).
Egan, J.P., Rose, Devine, Clark and Mulvey, JJ., concur.
-3- D-63-16
ORDERED that the motion of the Attorney Grievance Committee
for the Third Judicial Department is granted; and it is further
ORDERED that respondent is suspended from the practice of
law for a period of three months, effective immediately, and
until further order of this Court (see generally Uniform Rules
for Attorney Disciplinary Matters [22 NYCRR] § 1240.16); and it
is further
ORDERED that, for the period of suspension, respondent is
commanded to desist and refrain from the practice of law in any
form, either as principal or as agent, clerk or employee of
another; and respondent is hereby forbidden to appear as an
attorney or counselor-at-law before any court, judge, justice,
board, commission or other public authority, or to give to
another an opinion as to the law or its application, or any
advice in relation thereto; and it is further
ORDERED that respondent shall comply with the provisions of
the Uniform Rules for Attorney Disciplinary Matters regulating
the conduct of suspended attorneys (see Uniform Rules for
Attorney Disciplinary Matters [22 NYCRR] § 1240.15).
ENTER:
Robert D. Mayberger
Clerk of the Court