## Facts

- Thomas C. Monaghan, a New York attorney admitted in 1975, was the subject of attorney-discipline proceedings while already suspended on unrelated grounds.
- In 1996 federal depositions conducted by the U.S. Department of Labor, Monaghan represented a deponent and repeatedly attacked opposing counsel’s speech and pronunciation during two deposition sessions.
- After a motion for sanctions, a federal judge held a hearing at which Monaghan continued the personal attacks despite judicial warnings.
- The federal court imposed monetary sanctions, and Monaghan later sent opposing counsel a written apology acknowledging his tone and language were inappropriate.
- In a federal disciplinary matter, Monaghan executed a written stipulation admitting his conduct violated DR 1-102(A)(5) and (6) and agreeing that public censure was an appropriate sanction.
- The United States District Court for the Southern District of New York entered an order publicly censuring Monaghan for race-based abuse of opposing counsel in violation of DR 1-102(A)(5) and (6).
- The New York Grievance Committee sought reciprocal discipline under 22 NYCRR 691.3 based on the federal censure.
- Monaghan opposed reciprocal discipline, asserting an “infirmity of proof” defense and disputing the federal characterization of his motive.
- A Special Referee, after a hearing, concluded the misconduct was more likely gender-motivated than race-motivated and recommended against accepting the federal characterization.
- The Appellate Division considered whether the federal record was sufficiently reliable and what discipline to impose in New York.

## Issues

1. Whether reciprocal discipline should be imposed under 22 NYCRR 691.3 based on the federal public censure, or denied due to an “infirmity of proof” in the federal record.
2. Whether disagreement over whether the misconduct was race-based rather than gender-based justified refusing to accept the federal findings as final for reciprocal-discipline purposes.
3. What commensurate discipline should be imposed in New York if reciprocal discipline applies.

## Decision

- The court granted the Grievance Committee’s motion for reciprocal discipline under 22 NYCRR 691.3.
- The court rejected Monaghan’s “infirmity of proof” defense and accepted the federal findings and censure order as a sufficient basis for reciprocal discipline.
- The court declined to adopt the Special Referee’s conclusion that the evidence did not support the federal characterization of the misconduct.
- The court publicly censured Monaghan in New York, imposing discipline commensurate with the federal public censure.

## Legal Principles

- Under 22 NYCRR 691.3, New York generally imposes discipline commensurate with that imposed in another jurisdiction unless the attorney establishes a recognized defense (including lack of due process, infirmity of proof, or that the conduct would not be misconduct in New York).
- The “infirmity of proof” defense is narrow and does not permit relitigation of the underlying matter where the foreign proceeding is regular and the respondent participated, particularly where the respondent stipulated to the misconduct and sanction.
- Conduct during litigation that involves abusive, discriminatory attacks on opposing counsel may constitute conduct prejudicial to the administration of justice and conduct adversely reflecting on fitness to practice law under DR 1-102(A)(5) and (6).
- A reciprocal-discipline court may treat disputes about the precise discriminatory motivation as non-dispositive where the established and admitted conduct supports professional misconduct findings and the foreign tribunal entered a final disciplinary order.

## Conclusion

The court imposed reciprocal public censure based on a federal court’s public censure for abusive, discriminatory conduct toward opposing counsel, holding that the attorney failed to show an infirmity of proof under 22 NYCRR 691.3 and that reciprocal discipline commensurate with the federal sanction was warranted.


In re Monaghan, 295 A.D.2d 38, 743 N.Y.S.2d 519 (N.Y. App. Div. 2d Dep’t 2002)