Matter of Falco
150 A.D.3d 186
N.Y. App. Div.2017Background
- Philip M. Falco III, admitted in NY (1996) and CO (1997), pled guilty in Colorado (Feb. 3, 2015) to attempted third-degree assault (class 2 misdemeanor) for an incident on Dec. 1, 2013 involving his then-wife while their young children were home; he served one year probation and fines.
- Colorado disciplinary proceedings found Falco struck his wife with a closed fist, caused concussion and other injuries, made false statements to police, and minimized/blamed the victim; the hearing board found his testimony not credible and concluded he was not rehabilitated.
- Colorado suspended Falco from the practice of law for nine months (order dated July 7, 2016), effective Aug. 11, 2016, requiring petition for reinstatement.
- New York issued an order to show cause under 22 NYCRR 1240.13 based on the Colorado discipline; Falco submitted a December 1, 2016 affidavit asserting remorse, completion of probationary conditions (domestic-violence and anger-management classes, random testing), cooperation with Grievance Committee, and no prior NY discipline.
- The Second Department concluded the underlying domestic-violence misconduct warranted reciprocal discipline in New York and imposed a three-year suspension, longer than Colorado’s nine months.
Issues
| Issue | Petitioner(s) Argument | Respondent (Falco) Argument | Held |
|---|---|---|---|
| Whether New York should impose reciprocal discipline based on Colorado order | Colorado disciplinary findings establish misconduct warranting reciprocal suspension under 22 NYCRR 1240.13 | Mitigation and rehabilitation evidence should limit or avoid severe reciprocal discipline | Court imposed reciprocal discipline and suspended Falco in NY for three years |
| Appropriate length of suspension for domestic violence and related misconduct | Seriousness of assault on a pregnant spouse with children present and respondent’s lack of candor justify substantial suspension | Completed probation, counseling, testing; remorse and lack of prior discipline counsel for leniency | Three-year suspension (longer than Colorado) was imposed as appropriate sanction |
Key Cases Cited
- Matter of Zulandt, 93 A.D.3d 77 (App. Div. 2d Dep't) (domestic violence disciplinary suspension precedent relied upon by court)
- In re Grella, 438 Mass. 37 (Mass. 2002) (discusses role of lawyers to resolve conflicts without resort to violence)
- Iowa Supreme Court Attorney Disciplinary Bd. v. Deremiah, 875 N.W.2d 728 (Iowa Sup. Ct.) (characterizes violent assault as an affront to physical security and relevant to discipline)