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A New York appeals court has disbarred a matrimonial attorney who had only been suspended by New Jersey, her state of residence. A five-judge panel of the Appellate Division, 1st Department, unanimously took the unusual step of declining to follow the doctrine of reciprocal discipline in Matter of Melinda E. Lowell, M-964. In November 2003, the New Jersey Supreme Court imposed a three-year, retroactive suspension on Melinda Lowell, who has offices in Bergen County, N.J., and Manhattan. She had been charged with 48 violations of the New Jersey Rules of Professional Conduct. The New Jersey Disciplinary Review Board had sustained 10 of the charges, including lack of diligence; knowingly making a false statement of a material fact to a tribunal; offering evidence known to be false or failing to take remedial measures after learning that false evidence was offered; conduct involving dishonesty, fraud, deceit or misrepresentation; and counseling or assisting a client in conduct she knew was illegal, criminal or fraudulent. The board dismissed 38 counts of charging excessive fees. But it found that Lowell had charged attorney rates for work performed by paralegals. It had initially recommended disbarment, which the New Jersey Supreme Court imposed. After an appeal on Lowell’s behalf by Robert Del Tufo, a former New Jersey attorney general now with Skadden, Arps, Slate, Meagher & Flom, the board reduced its recommendation to a three-year suspension, which the New Jersey Supreme Court again followed. “In each case, I’m convinced the charges were either not sustainable or overblown,” Del Tufo said in an interview. “The discipline should have been minor.” The 1st Department’s Disciplinary Committee sought a three-year suspension based on the findings in the New Jersey proceedings. Del Tufo filed a response, including a 57-page memorandum, in Lowell’s defense, arguing that a review of the merits should lead New York to follow New Jersey’s example. The committee agreed and recommended suspension. However, a 1st Department panel deemed the sanction insufficient. In an unsigned decision released this month, the panel said it held “the greatest regard for our sister state’s disciplinary system” but ordered Lowell disbarred in New York. “We recognize and support the generally accepted and well reasoned principle that the jurisdiction where a respondent lives and actively practices law at the time of the offense has the greatest interest in the issue and the public policy considerations relevant to such disciplinary actions,” the court said. “While we respect this long standing policy and tradition, and we always or virtually always impose a reciprocal sanction, we most respectfully … must decline to follow the doctrine of reciprocal discipline in this particular matter.” The panel stated that it found itself “in complete agreement with the original sanction [of disbarment] because it is completely in accord with our own precedent in matters involving such egregious patterns of violations of legal and ethical obligations.” The Appellate Division’s overriding of a Disciplinary Committee’s recommendation is fairly common, according to the committee’s former chief counsel Michael Gentile. But he said the court usually heeds the disciplinary decisions of other states. “There is kind of like full faith and credit given to the disciplinary decisions given by a sister state,” said Gentile, now of counsel at Benjamin Brotman & Associates. “It is unusual for there to be difference in the discipline.” Courts in both states relied on the findings of New Jersey’s Disciplinary Review Board. The difference arose from their reliance on two different sets of findings, according to Del Tufo. New York relied on the board’s first proceeding, which lacked a complete defense and had been affected by Lowell’s erratic behavior at a hearing, according to Del Tufo. New Jersey, he said, relied on the board’s second decision, which used a more detailed defense that Lowell made in an appeal in which he represented her. The board issued its initial decision in October 2001, recommending disbarment, saying Lowell “showed no appreciation for the basic trust that must exist between opposing counsel” and that “even at the ethics hearing, [she] displayed an arrogant, discourteous attitude toward the presenter, the witnesses and even the district ethics committee.” A doctor for New Jersey’s ethics committee later described Lowell’s conduct as an exaggerated example of the way she practiced law. The board concluded that Lowell had violated at least 10 provisions of the Rules of Professional Conduct, and noted that she did not present mitigating evidence. In her appeal, Lowell rebutted the board’s analysis. She submitted six doctors’ reports saying that her behavior at the first hearing reflected depression, not disrespect. Lowell felt “agitated and self-critical” and so humiliated by the crisis that she could never face any lawyers again, the doctors reported. The appeal also presented defenses to each of the sustained charges. The New York decision said that Lowell submitted “no new evidence” to the board and that New Jersey had reduced her punishment because of factors such as her “character letters” and evidence of “severe psychiatric and emotional problems.” Del Tufo said he plans to petition the court for reargument or, alternatively, “take it another step on the appellate chain.”

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