Censure, Not Suspension, for Dual Misdemeanor DWI Convictions Where Mitigation Is Strong: Matter of Halton

Introduction

In Matter of Halton, 2025 NY Slip Op 04902 (Appellate Division, Second Department), the Court addressed the appropriate professional discipline for an attorney convicted of two unclassified misdemeanor offenses arising from intoxicated driving: aggravated driving while intoxicated (Vehicle and Traffic Law § 1192[2‑a][a]) and common-law driving while intoxicated (Vehicle and Traffic Law § 1192[3]). The respondent, an attorney admitted in 1991, was charged in separate incidents in Nassau and Suffolk Counties, pled guilty in both matters, served custodial sentences (7 days and 45 days), and completed treatment, testing, and other court-imposed conditions.

Proceeding under 22 NYCRR 1240.12(c)(3)(iii), the Second Department issued an order to show cause directing the attorney to appear before a Special Referee and explain why a final order of discipline should not be imposed. After a hearing, the Special Referee found the respondent failed to establish that public discipline should not be imposed. The Grievance Committee moved to confirm the report and impose a sanction. The respondent did not oppose.

The core issue was sanction selection: whether the attorney’s dual misdemeanor DWI convictions—one aggravated and committed while the other case was pending—warranted suspension or disbarment, or whether public censure would suffice given substantial mitigation. The Court held that, “under the totality of the circumstances,” public censure was the appropriate sanction, expressly aligning the outcome with prior Second Department authority.

Summary of the Opinion

The respondent pled guilty in Nassau County District Court to aggravated DWI (§ 1192[2‑a][a]) after operating a vehicle with a BAC of 0.18% or higher; he received 7 days’ incarceration, a one-year conditional discharge with license revocation and ignition interlock, and treatment/educational mandates, as well as fines.
While the Nassau matter was pending, he was separately arrested in Southold and later pled guilty to common-law DWI (§ 1192[3]); he received 45 days’ incarceration, an 18-month license revocation, and fines. He refused a chemical test in that incident.
At a hearing before Hon. Peter B. Skelos, as Special Referee, the respondent did not contest the convictions and offered mitigation: acceptance of responsibility, completion of sentences and treatment, negative chemical test results, cessation of alcohol use, an unblemished prior disciplinary record over 32 years, and stable non-legal employment. He expressed gratitude that no one was injured and acknowledged the danger posed by his conduct.
The Special Referee found no aggravating factors and substantial mitigation, yet concluded the respondent failed to show that public discipline should not be imposed.
The Appellate Division granted the Grievance Committee’s motion to confirm the Referee’s report and, citing Matter of Lovell, 232 AD3d 64, and Matter of Battaglia, 177 AD3d 16, publicly censured the respondent.

Analysis

Governing Framework and Standards

New York’s disciplinary rules draw a structural distinction between “serious crimes” and other offenses. A felony conviction triggers automatic disbarment under Judiciary Law § 90(4). Certain misdemeanors are “serious crimes” under 22 NYCRR 1240.12(a) and may support immediate interim suspension pending final discipline. By contrast, other misdemeanors—such as the DWI offenses at issue here—are not classified as “serious crimes.” For such convictions, 22 NYCRR 1240.12(c)(3)(iii) authorizes the Court to direct the attorney to show cause why a final order of suspension, censure, or disbarment should not issue, and to refer the matter to a Special Referee to evaluate mitigation and aggravation.

The facts of conviction are typically established by the criminal record; the disciplinary hearing focuses on the appropriate sanction. The respondent bears the burden to demonstrate why a lesser sanction or no public discipline is warranted in light of the convictions. The menu of sanctions ranges from private admonition (nonpublic) to public censure, suspension for a stated period, or disbarment, depending on the gravity of the misconduct and the balance of aggravating and mitigating circumstances.

Precedents Cited

The Court expressly relied on two Second Department precedents to calibrate the sanction:

Matter of Lovell, 232 AD3d 64: The Court imposed a public censure in a DWI-related disciplinary matter. By invoking Lovell, the Court signals that misdemeanor DWI convictions—while serious—do not invariably warrant suspension where the attorney demonstrates substantial rehabilitation and mitigation.
Matter of Battaglia, 177 AD3d 16: The Court again used censure in the DWI context, underscoring that public censure is a recognized and proportionate sanction for DWI misdemeanors in the presence of favorable mitigation and absent aggravating factors.

By anchoring Halton to Lovell and Battaglia, the Second Department affirms continuity in sanctioning: attorneys with DWI misdemeanor convictions can receive public censure rather than suspension where the record demonstrates remorse, compliance with criminal sentences, effective treatment and sobriety, and no aggravating features.

The Court’s Legal Reasoning

The Court’s reasoning unfolds in three steps:

Convictions established: The respondent’s guilty pleas to aggravated DWI (§ 1192[2‑a][a]) and DWI (§ 1192[3]) conclusively established the underlying misconduct for disciplinary purposes. Because these are unclassified misdemeanors, the proceeding properly advanced under 22 NYCRR 1240.12(c)(3)(iii), with a show-cause order and referral to a Special Referee.
Mitigation assessed by the Special Referee: The respondent offered extensive mitigation: full acceptance of responsibility, completion of custodial terms and other criminal conditions, sustained participation in individual and group therapy, negative chemical testing, cessation of alcohol use, a 32-year practice without prior discipline, and stable non-legal employment focused on helping others. Importantly, the Referee found no aggravating factors and acknowledged the respondent’s self-imposed hiatus from practice leading up to the hearing.
Sanction selection and parity: Despite the absence of aggravation, the Referee concluded—and the Court agreed—that public discipline remained necessary in light of two separate DWI convictions, one aggravated and occurring while the earlier case was pending. The Court chose public censure, expressly citing Lovell and Battaglia to ensure parity and predictability in sanctions for DWI misdemeanors under similar mitigating circumstances.

Notably, while the opinion acknowledges the respondent did not “timely file a record of his convictions” with the Court, it also records that he contacted the Grievance Committee with letters providing relevant information. The Special Referee nonetheless found no aggravating factors. The Court did not treat the reporting delay as aggravation in this case, likely crediting the respondent’s disclosure efforts and the overall mitigation record.

Mitigating and Aggravating Factors: How They Mattered

The Referee and the Court found:

Mitigation
- Acceptance of responsibility and remorse.
- Completion of all criminal sanctions, including incarceration, treatment, educational programs, and fines.
- Documented sobriety: negative chemical tests and completion of therapy.
- Long, previously unblemished legal career (32 years without discipline).
- Constructive rehabilitation: stable non-legal employment serving others; cessation of alcohol use.
Aggravation
- None found by the Special Referee. The opinion identifies no additional aggravating features such as noncompliance with court orders, dishonesty, or harm to clients or the administration of justice.

Even with no aggravation, the fact of two DWI convictions—one aggravated and committed during the pendency of the other—compelled public discipline. The Court selected censure rather than suspension, signaling strong weight was given to the respondent’s sustained rehabilitation and otherwise exemplary professional record.

Impact and Future Applications

Matter of Halton clarifies and reinforces several points important to attorney discipline in New York:

Sanction calibration for DWI misdemeanors: Multiple misdemeanor DWI convictions, including aggravated DWI, can result in public censure rather than suspension when the record shows robust, verifiable rehabilitation, sustained sobriety, completion of all criminal sanctions, sincere remorse, and an otherwise unblemished professional history, with no aggravating factors.
Baseline expectation of public discipline in dual-conviction cases: Where there are two DWI convictions arising from separate incidents, an admonition (nonpublic) is unlikely. Halton suggests that at least public censure will be imposed, even amid strong mitigation.
Importance of mitigation proof: Documentary evidence of treatment completion, negative tests, therapy engagement, and employment stability can be outcome determinative in avoiding suspension.
Reporting obligations: Although the respondent’s delayed filing of the conviction record was noted, his outreach to the Grievance Committee and overall mitigation forestalled an aggravation finding. Attorneys should still treat timely reporting as mandatory; however, Halton indicates that genuine, documented efforts at disclosure and rehabilitation may temper how a delay is weighed.
Parity with precedent: By citing Lovell and Battaglia, the Court underscores that DWI-related discipline is guided by established comparators; parties should brief sanctions by reference to analogous Second Department outcomes.

Conversely, future cases may see suspension where mitigation is weak or where aggravation exists (for example, noncompliance with criminal sentences, additional misconduct, or conduct that causes injury). Halton demarcates the censure zone; departures upward will typically be driven by aggravation and/or absence of credible rehabilitation.

Complex Concepts Simplified

Unclassified misdemeanor: A New York offense that is not categorized as Class A or B, often carrying its own sentencing schema (e.g., many Vehicle and Traffic Law offenses). It is still a crime but not a felony.
Aggravated DWI (VTL § 1192[2‑a][a]): Driving with a blood alcohol content (BAC) of 0.18% or higher. It elevates the seriousness of DWI based on BAC.
Common-law DWI (VTL § 1192[3]): Driving while in an intoxicated condition proven by observations and field evidence rather than a per se BAC threshold.
22 NYCRR 1240.12(c)(3)(iii): The disciplinary rule authorizing the Appellate Division to issue an order to show cause for final discipline (including censure, suspension, or disbarment) based on criminal convictions that are not otherwise handled as “serious crimes.”
Special Referee: A judicial officer appointed to conduct hearings, take evidence (particularly on mitigation/aggravation), and report findings and recommendations to the Appellate Division.
Public censure: A formal, public reprimand by the Court. It does not itself restrict the attorney’s right to practice but is part of the attorney’s public disciplinary record and may carry reputational and collateral consequences.
Suspension vs. disbarment: Suspension prohibits practice for a set period; disbarment removes the attorney from the bar (with stringent conditions for potential reinstatement).
Conditional discharge; ignition interlock; IDP; Victim Impact Panel: Common criminal-sentencing tools in DWI cases aimed at punishment and rehabilitation—compliance with such conditions is a significant mitigation factor in disciplinary proceedings.

Conclusion

Matter of Halton reaffirms the Second Department’s measured approach to sanctioning attorneys for DWI misdemeanors: even with two convictions—including an aggravated offense—public censure is an appropriate sanction where mitigation is compelling and unrefuted, no aggravating factors are found, and the attorney demonstrates meaningful, sustained rehabilitation and compliance with the criminal sentences. By aligning the outcome with Matter of Lovell and Matter of Battaglia, the Court promotes parity and predictability in this domain.

For practitioners and disciplinary counsel, Halton offers concrete guidance: prompt candor, verified rehabilitation, and full compliance with criminal obligations can avert suspension in dual-DWI contexts, but public discipline will almost certainly be imposed. The decision underscores that protecting the public and maintaining confidence in the bar require a public response to criminally reckless conduct, while also recognizing redemption through documented recovery and responsible conduct post-conviction.