Opinion
05-23-2024
In the MATTER OF Timothy J. MCILWAIN, An attorney and counselor-at-law: Attorney Grievance Committee for the First Judicial Department, Petitioner, v. Timothy J. McIlwain, (OCA Atty. Reg. No. 5657622), Respondent.
Jorge Dopico, Chief Attorney, Attorney Grievance Committee, New York, (Christopher S. Ronk, of counsel), for petitioner. Respondent pro se.
Disciplinary proceedings instituted by the Attorney Grievance Committee for the First Judicial Department. Respondent, Timothy J. McIlwain, was admitted to the Bar of the State of New York at a Term of the Appellate Division of the Supreme Court for the First Judicial Department on March 18, 2019.
Jorge Dopico, Chief Attorney, Attorney Grievance Committee, New York, (Christopher S. Ronk, of counsel), for petitioner.
Respondent pro se.
Jeffrey K. Oing, J.P., Anil C. Singh, Bahaati E. Pitt-Burke, Kelly O’Neill Levy, Marsha I). Michael, JJ.
PER CURIAM
Respondent Timothy J. McIlwain, pro se, was admitted to the practice of law in the State of New York by the First Judicial Department on March 18, 2019. Respondent maintains a registered address in the First Judicial Department.
By order entered July 20, 2023, the Supreme Court of New Jersey suspended respondent from the practice of law for one month, effective August 18, 2023, and until further order of the court, for his professional misconduct in connection with child custody litigation involving his daughter. Respondent was reinstated in New Jersey on November 15, 2023.
By motion dated November 30, 2023, the Attorney Grievance Committee (AGC) requests the Court impose reciprocal discipline, pursuant to Rules for Attorney Disciplinary Matters (22 NYCRR) § 1240.13, by suspending respondent for a period consistent with that imposed by the New Jersey Supreme Court or sanctioning respondent as this Court deems appropriate.
Background
In or about April 2018, respondent, the mother of their daughter (the mother), and their daughter moved from New Jersey to Kentucky. Thereafter, their relationship broke down and on February 10, 2019, the mother requested that respondent move out of the residence. On February 27, 2019, respondent unilaterally removed their two or three-year old child, from Kentucky, where she had been residing with her mother and attending preschool full time, to New Jersey, without the mother's knowledge or consent. The next day, the mother commenced a custody action and filed an emergency motion for the return of the child in the Jefferson County Superior Court of Kentucky. A healing was scheduled for March 4. Notwithstanding the pending Kentucky proceeding, respondent commenced a custody action in the Atlantic County Superior Court of New Jersey. The New Jersey court also scheduled a hearing on March 4. On March 4, the New Jersey court spoke with the Kentucky court and was provided with the Kentucky court filings. The New Jersey court then dismissed the matter, relinquished jurisdiction to Kentucky under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and directed respondent to return the child to the mother, which he did on March 5, 2019.
On March 25, 2019, without seeking leave of court, respondent filed an amended complaint, captioned under the dismissed New Jersey matter. He alleged that the mother had exposed their daughter to mold and lead poisoning at the Kentucky residence. However, he provided no documentation evidencing the child had suffered from mold or lead poisoning. He did not serve the mother or her New Jersey or Kentucky counsel with a copy of the amended complaint.
On March 26, 2019, respondent served the mother’s former and current employers, as well as the property management company of her leased New Jersey apartment with three subpoenas all captioned under the dismissed New Jersey matter. Respondent again failed to serve the mother or her counsel with copies of the subpoenas. In addition, respondent sent a letter to the property management company (which was not provided to the mother) and demanded it comply with the subpoena and falsely stated that the company was a party to a nonexistent lawsuit in which respondent was the plaintiff.
After the mother learned of the subpoenas from her employer, her New Jersey attorney moved to quash them and sought sanctions against respondent when respondent refused to withdraw the subpoenas.
On July 16, 2019, the New Jersey court dismissed the amended complaint; found the subpoenas were invalid; and ordered respondent to pay the mother $1,000 in attorney’s fees based on respondent’s bad faith actions in pursing this action. On August 26, 2019, respondent appealed the New Jersey court’s March 4 and July 16, 2019 orders.
On January 7, 2020, respondent and the mother entered into a mediation agreement in which they agreed Kentucky would have exclusive jurisdiction over custody and the mother would withdraw her disciplinary complaints against respondent in New Jersey and New York. Despite agreeing to relinquish jurisdiction to Kentucky, respondent did not withdraw his appeal of the New Jersey orders. On February 26, 2020, the appeal was dismissed after respondent repeatedly failed to comply with court rules.
New Jersey Disciplinary Matter
The New Jersey District 1 Ethics Committee (DEC) found that respondent’s amended complaint and subpoenas filed/issued under the dismissed New Jersey custody proceeding constituted frivolous conduct; conduct involving dishonesty, fraud, deceit or misrepresentation; and conduct prejudicial to the administration of justice in violation of New Jersey Rules of Professional Conduct 3.1, 8.4(c), and 8.4(d). In addition, the DEC found, by entering into the mediation agreement requiring the mother to withdraw her disciplinary complaints against him, respondent violated New Jersey Rule of Professional Conduct 8.4(d).
The DEC recommended a three-month suspension from the practice of law against respondent and the New Jersey Disciplinary Review Board (DRB) agreed. By order entered July 20, 2023, the New Jersey Supreme Court affirmed the DRB’s misconduct findings, but suspended respondent from the practice of law for one month, effective August 18, 2023, and until further order of the court. As noted, respondent was reinstated on November 15, 2023.
Discussion
The AGC has moved for an order imposing reciprocal discipline against respondent, consistent with that imposed by the New Jersey Supreme Court or as this Court deems appropriate. Respondent opposes AGC’s motion and requests this Court dismiss AGC’s complaint. His response evinces no remorse for his misconduct, and instead, contains repeated accusations against a member of the DRB of bias and impropriety.
In a proceeding seeking reciprocal discipline, as here, under 22 NYCRR 1240.13, respondent may raise the following defenses: (1) lack of notice or opportunity to be heard in the foreign jurisdiction constituting a depravation of due process; (2) an infirmity of proof establishing the misconduct; or (3) that the misconduct for which the attorney was disciplined in the foreign jurisdiction does not constitute misconduct in this state (see Matter of Milara, 194 A.D.3d 108, 110, 143 N.Y.S.3d 358 [1st Dept. 2021]).
[1] None of the defenses apply to this matter. First, respondent received notice of the charges against him and was represented by counsel throughout the disciplinary proceedings. Second, the record sufficiently supports the New Jersey Supreme Court’s misconduct findings. Third, respondent’s misconduct in New Jersey also constitutes misconduct in violation of New York Rules of Professional Conduct (22 NYCRR 1200.0) 3.1(a), 8.4(c), and 8.4(d).
[2] Generally, "significant weight should be given to the sanction imposed by the jurisdiction where the misconduct occurred because the foreign jurisdiction has the greatest interest in fashioning sanctions for misconduct" (Matter of Blumenthal, 165 A.D.3d 85, 86, 81 N.Y.S.3d 898 [1st Dept. 2018]; see Matter of Jaffe, 78 A.D.3d 152, 158, 908 N.Y.S.2d 623 [1st Dept. 2010]). Only in rare instances will this Court depart from its general rule (Matter of McHallam, 160 A.D.3d 89, 92, 72 N.Y.S.3d 90 [1st Dept. 2018]).
[3] Here, respondent, among other things, (1) removed his two or three-year old daughter from Kentucky to New Jersey without the mother’s consent, requiring the mother to file an emergency motion in Kentucky and retain counsel in two jurisdictions; (2) filed an amended complaint in a previously dismissed New Jersey proceeding without first seeking leave from the court; (3) issued three subpoenas, captioned under the dismissed proceeding, on the mother’s former and current employers and failed to serve the mother or her counsel with a copy of the subpoenas; (4) entered into an agreement with the mother requiring her to withdraw her disciplinary complaints against him; and (5) refused to withdraw the improper subpoenas and appeal in New Jersey.
Under the circumstances, reciprocal discipline consistent with that imposed by the New Jersey Supreme Court, i.e., a one-month suspension from the practice of law, is not "strikingly inconsistent with this Court’s own precedent involving similar misconduct" (Matter of Jauregui, 175 A.D.3d 34, 38, 103 N.Y.S.3d 440 [1st Dept. 2019]).
In (Matter of Gurvey, 102 A.D.3d 197, 958 N.Y.S.2d 5 [1st Dept. 2012], appeal dismissed 20 N.Y.3d 1085, 965 N.Y.S.2d 73, 987 N.E.2d 634 [2013]), this Court imposed a six-month suspension from the practice of law against an attorney for her misconduct as a litigant. Although she was not acting in her professional capacity when she engaged in misconduct, "this Court has disciplined attorneys for conduct that is both in and out of their profession so as to ensure the public’s right to representation by attorneys who are worthy of trust" (id. at 200, 958 N.Y.S.2d 5 [internal quotation marks omitted]). Based on "respondent’s pursuit of frivolous and vexatious litigation, as well as her misrepresentations to the court," suspension was warranted (id.; see also Matter of Pu, 37 A.D.3d 56, 61, 826 N.Y.S.2d 43 [1st Dept. 2006], lv dismissed in part, denied in part 8 N.Y.3d 877, 832 N.Y.S.2d 487, 864 N.E.2d 617 [2007] [rejecting attorney’s request for lesser sanction of public censure and imposing one-year suspension from the practice of law based on attorney’s "false representation to the court and knowingly pursuing [ ] frivolous litigation"]).
In an analogous case, an attorney was sanctioned for his misconduct in connection with his personal divorce action (see Matter of Davey, 111 A.D.3d 207, 973 N.Y.S.2d 67 [1st Dept. 2013]). This Court held, "[t]he fact that no ‘client’ was harmed does not make the misconduct any less egregious or remove this matter from this Court’s or the Committee’s jurisdiction" (id. at 213, 973 N.Y.S.2d 67). The conduct at issue, "use of the legal system to harass an ex-wife, her attorneys and judges arising from a divorce" involved the filing of "multiple meritless actions" in two jurisdictions (id.). Moreover, "respondent refused to acknowledge any wrongdoing, submitted no substantive mitigation evidence and showed no remorse." As a result, the attorney was suspended from practicing law in New York for two years (id.).
Accordingly, the AGC’s motion is granted. Respondent is suspended from the practice of law in the State of New York for a period of one month, effective June 24, 2024 and until further order of this Court.
All concur.
It is Ordered that the Attorney Grievance Committee’s motion for reciprocal discipline pursuant to 22 NYCRR 1240.13, predicated upon similar discipline imposed by the Supreme Court of New Jersey, is granted, and respondent Timothy J. McIlwain is suspended from the practice of law in the State of New York for a period of one month, effective June 24, 2024, and until further order of this Court, and
It is further Ordered that pursuant to Judiciary Law § 90, during the period of suspension and until further order of this Court, respondent Timothy J. McIlwain shall desist and refrain from (1) practicing law in any form, either as principal or as agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counsel-or-at-law; and
It is further Ordered that respondent Timothy J. McIlwain is directed to fully comply with the rules governing the conduct of disbarred or suspended attorneys (see 22 NYCRR 1240.15), which are made a part hereof; and
It is further Ordered that if respondent Timothy J. McIlwain has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith.