Introduction

In Matter of Mulhearn, the Appellate Division, Second Department, grants a joint motion for discipline by consent under 22 NYCRR 1240.8(a)(5) and imposes a one‑year suspension on attorney Kevin Thomas Mulhearn. The case centers on professional misconduct arising from:

• Neglect of a personal injury action filed on behalf of a Chapter 7 Trustee, including a failure to appear at a preliminary conference resulting in dismissal without prejudice under 22 NYCRR 202.27(c), and
• Failure to comply with a federal bankruptcy court’s retention order requiring quarterly written status reports to the Trustee and the United States Trustee, culminating in the attorney’s removal as special counsel and denial of compensation under 11 USC §§ 330 and 331.

Against that backdrop, the parties jointly proposed a sanction within the range of public censure to a one‑year suspension. The Court accepted the consent posture, found violations of Rules of Professional Conduct 1.3(b), 1.4(a)(3), 1.4(a)(4), 8.4(d), and 8.4(h), and—after weighing aggravation and mitigation—selected the top of the requested range: a one‑year suspension commencing October 24, 2025.

The opinion underscores two important themes in New York attorney discipline: (1) in consent discipline, the Court independently calibrates sanction severity based on the totality of the circumstances, especially where there is a pattern of similar misconduct; and (2) failure to honor reporting duties imposed by a federal bankruptcy retention order is professional misconduct that can—and here did—inform state disciplinary sanctions.

Summary of the Opinion

The Grievance Committee for the Ninth Judicial District brought four charges of professional misconduct. After joinder of issue and a referral to a Special Referee, the Grievance Committee and the respondent jointly moved for discipline by consent (22 NYCRR 1240.8[a][5]), supported by a joint affirmation and an affidavit in which the respondent conditionally admitted the pertinent facts and rule violations.

The admitted facts include:

• The respondent’s retention by a Chapter 7 Trustee as special counsel (by bankruptcy court order dated April 19, 2021) to pursue a personal injury claim.
• Filing suit in Supreme Court, Rockland County, but failing to appear for a preliminary conference on November 21, 2022, leading to dismissal without prejudice under 22 NYCRR 202.27(c).
• Failing, for approximately 18 months, to provide the quarterly written status reports mandated by the federal retention order to the Trustee and the U.S. Trustee, despite repeated requests.
• Failing to answer or appear on the Trustee’s motion to terminate his appointment under 11 USC § 327, after which the bankruptcy court removed him as special counsel and denied compensation and reimbursement (order dated December 1, 2022).

On those facts, the respondent conditionally admitted violations of:

• Rule 1.3(b) (neglect of a legal matter),
• Rule 1.4(a)(3) and (4) (failure to keep client reasonably informed and to promptly comply with reasonable requests for information),
• Rule 8.4(d) (conduct prejudicial to the administration of justice), and
• Rule 8.4(h) (conduct adversely reflecting on fitness as a lawyer).

The parties jointly asked for public discipline within a range from public censure to a one‑year suspension. In aggravation, the Court considered the respondent’s substantial prior history (five Admonitions, two Letters of Advisement, and two Letters of Caution, many for similar conduct). In mitigation, the Court considered cooperation, acknowledgement of mistakes, remorse, and the respondent’s assertion that his practice serves vulnerable clients who would be harmed by an extended suspension.

The Court granted the motion for consent discipline and, consistent with its precedents (citing Matter of Gabay, 185 AD3d 5), imposed a one‑year suspension. Reinstatement may not be sought earlier than July 24, 2026 and requires the standard proofs under 22 NYCRR 1240.16 and 1240.15, compliance with CLE requirements (22 NYCRR 691.11[a]), and compliance with Judiciary Law § 90 (practice restrictions).

Analysis

Precedents Cited and Framework Applied

Although the opinion is succinct and cites only one prior case by name, it nests within a well‑defined disciplinary framework:

• 22 NYCRR 1240.8(a)(5): Governs “discipline by consent,” permitting the Grievance Committee and respondent to move jointly for discipline on an agreed record. The respondent must, among other things, submit an affidavit admitting facts and acknowledging that those facts establish misconduct.
• 22 NYCRR 1240.8(b)(1): Authorizes referral to a Special Referee to hear and report. Notably, this case shows the Court may entertain and grant a consent motion even after such a referral has issued, thereby conserving adjudicative resources once the parties stipulate to the operative facts and violations.
• 22 NYCRR 202.27(c): Provides for dismissal when a party fails to appear at a scheduled conference. The dismissal here—though without prejudice—was a salient act of neglect that the Court linked to Rule 1.3(b) and Rule 8.4(d).
• 11 USC § 327; §§ 330, 331: Federal bankruptcy provisions on retaining and compensating professionals. The federal court’s removal of respondent and denial of compensation were part of the factual matrix supporting violations of the New York Rules of Professional Conduct.
• Judiciary Law § 90; 22 NYCRR 1240.15 and 1240.16; 22 NYCRR 691.11(a): Statutory and regulatory authority for imposing suspension, specifying conduct during suspension, and setting reinstatement prerequisites (including CLE obligations).

The Court’s sole case citation is to Matter of Gabay, 185 AD3d 5, which it invokes for sanction calibration. While the opinion does not detail Gabay, the reference signals that a one‑year suspension falls within established Second Department benchmarks where neglect and communication failures are compounded by an attorney’s disciplinary history.

Legal Reasoning

The Court’s reasoning tracks the consent discipline rule’s structure:

• Admissions and Violations: The respondent’s affidavit supplied conditional admissions both as to facts and as to the legal sufficiency of those facts to establish multiple rule violations—spanning diligence, communication, and overall fitness. The admissions satisfied 22 NYCRR 1240.8(a)(5)(iii), enabling the Court to find misconduct without an evidentiary hearing.
• Jurisdictional Reach and Cross‑Court Conduct: The Court treats misconduct occurring in federal bankruptcy proceedings (failure to comply with a retention order and to appear on a motion) and New York trial court proceedings (failure to attend a preliminary conference) as disciplinable in the state forum. This aligns with the principle that New York’s disciplinary authority encompasses attorney conduct in any tribunal, and that federal court orders can supply the operative facts establishing state disciplinary violations.
• Rule Mapping to Facts:
  • Rule 1.3(b): Neglect inferred from nonappearance causing dismissal and from sustained inaction on court‑mandated reporting.
  • Rule 1.4(a)(3) and (4): Failure to keep the client (here, the bankruptcy Trustee) reasonably informed and to respond to reasonable information requests—exacerbated because quarterly reporting was required by court order.
  • Rule 8.4(d): Conduct prejudicial to the administration of justice anchored in violations of specific court directives (the bankruptcy retention order) and nonappearance in court proceedings.
  • Rule 8.4(h): Broader fitness concerns where the misconduct reflects adversely on professional responsibilities.
• Sanction Selection: The Court explicitly weighs the “totality of the circumstances,” a phrase that signals a holistic balancing of:
  • Aggravation: A significant record of prior, similar discipline (five Admonitions; two Letters of Advisement; two Letters of Caution). The recurrence of similar failings tends to push sanctions upward to protect the public and maintain standards.
  • Mitigation: Cooperation, acknowledgment, and remorse; the asserted client‑impact concern arising from a practice serving vulnerable clients. The Court’s selection of the high end of the stipulated range suggests aggravation predominated.

The Court’s reliance on consent does not abdicate its independent duty to fix appropriate discipline. By citing precedent and framing analysis around the totality test, the Court signals that—even in a jointly proposed range—it will calibrate sanctions in line with institutional benchmarks and the lawyer’s disciplinary history.

Why the One‑Year Suspension? Sanction Calibration Explained

The parties proposed a window from public censure to a one‑year suspension. Selecting the upper bound conveys several sanctioning principles frequently applied in attorney discipline:

• Pattern vs. One‑Off: When factual misconduct mirrors prior disciplined conduct, escalation is warranted to deter repetition and to safeguard the administration of justice.
• Court‑Order Noncompliance: Disobedience of explicit court directives (quarterly reporting; appearing on motions; timely court appearances) is given significant weight under Rule 8.4(d).
• Client Setting: That the “client” was a Chapter 7 Trustee, acting for the estate and creditors, highlights institutional stakes beyond a private client. Missteps can jeopardize the orderly administration of bankruptcy estates.
• Collateral Consequences: Removal and fee denial in bankruptcy do not obviate state discipline; rather, they corroborate the seriousness of the misconduct.

Overall, the opinion reinforces that substantial prior history—especially for similar neglect/communication lapses—will likely drive the Second Department to the upper end of any negotiated range.

Impact and Prospective Significance

The opinion’s practical and precedential effects are several:

• Consent Discipline Usage: Confirms that joint motions under 1240.8(a)(5) remain a viable, court‑favored path to efficient resolution even after a Special Referee referral has issued. Attorneys can streamline matters by timely admissions, but they should not expect minimal sanctions merely because of consent.
• Bankruptcy–State Discipline Nexus: Underscores that failures in federal bankruptcy practice—including noncompliance with retention orders and inattention to Trustee communications—will be policed through state disciplinary rules. Trustees and the U.S. Trustee can expect their supervisory prerogatives to be reinforced by state sanctions when violated.
• Communication and Diligence Baselines: Reaffirms that institutional clients (trustees, public bodies) are entitled to the same Rule 1.4 communication and Rule 1.3 diligence as private clients—if anything, with heightened scrutiny because court oversight is layered on top.
• Sanction Benchmarks: Positions a one‑year suspension as an appropriate response to combined neglect, communication failures, and disobedience of court orders where there is meaningful prior discipline—consistent with the Court’s citation to Matter of Gabay.
• Mitigation Boundaries: The asserted hardship to vulnerable clients weighed in mitigation but did not prevent a substantial suspension. This signals that client‑impact arguments must be weighed against the systemic need for deterrence and public protection.

Complex Concepts Simplified

• Discipline by Consent (22 NYCRR 1240.8[a][5]): A negotiated disciplinary resolution in which the respondent admits facts and rule violations, and both sides jointly propose a sanction range. The Court still independently decides whether to accept the consent and which sanction to impose within the proposed range.
• Special Referee (1240.8[b][1]): A court‑appointed neutral who conducts hearings and reports findings in disciplinary matters. A consent resolution can supersede the need for a referee hearing.
• Retention under 11 USC § 327: Bankruptcy trustees may retain professionals (like litigators) with court approval. Retention orders often include oversight conditions (e.g., periodic status reports). Failure to comply can lead to removal and loss of fees.
• Dismissal under 22 NYCRR 202.27(c): New York trial courts can dismiss matters when parties fail to appear for scheduled conferences. Even a dismissal “without prejudice” can reflect neglect and trigger professional discipline.
• Rule 1.3(b) vs. Rule 1.3(a): While Rule 1.3 generally requires diligence, subdivision (b) addresses neglect—typically prolonged inaction or missed obligations evidencing a failure to handle a matter entrusted to the lawyer.
• Rule 1.4(a)(3) and (4): Lawyers must keep clients reasonably informed and promptly respond to reasonable information requests. For institutional clients (like trustees), duties include complying with specially ordered reporting protocols.
• Rule 8.4(d): Prohibits conduct prejudicial to the administration of justice. Disobeying court orders, failing to appear, or impeding court processes can qualify.
• Rule 8.4(h): Captures conduct that adversely reflects on overall fitness to practice, often applied when patterns of misconduct suggest broader professional shortcomings.
• Admonitions, Letters of Advisement, Letters of Caution: Nonpublic forms of discipline or guidance. Multiple prior instances—especially for similar behavior—are aggravating and can escalate sanctions in subsequent matters.
• Judiciary Law § 90 and 22 NYCRR 1240.15: Define the prohibitions during suspension (no practice, no appearances, no legal opinions/ advice, no holding out) and require formal compliance steps (e.g., affidavit of compliance, return of secure pass).
• Reinstatement (22 NYCRR 1240.16; 22 NYCRR 691.11[a]): After a suspension, an attorney must apply for reinstatement, proving compliance with the order, CLE completion, and proper conduct during suspension. Matter of Mulhearn sets the earliest application date (July 24, 2026) ahead of the suspension’s end to allow processing.

Practical Implications and Guidance for Practitioners

• Calendaring and Redundancy: Institute multi‑layer calendaring for all court appearances and ordered reporting deadlines. Assign responsibility redundantly (attorney + staff) for conference appearances and for recurring reports to institutional clients.
• Bankruptcy Protocol Compliance: When retained under § 327, carefully implement any retention order’s reporting obligations—e.g., automated quarterly reminders, standardized update templates, and confirmation of filing with the U.S. Trustee where required.
• Client Communication Logs: Maintain contemporaneous logs of communications and responses to client (or trustee) inquiries. These records both ensure compliance and provide critical proof if issues arise.
• When Problems Arise: If unable to meet a court‑ordered obligation, seek relief before default—move to extend, notify the court, and inform the client. Proactive engagement can mitigate both case risk and disciplinary exposure.
• Consent Discipline Strategy: Where liability for misconduct is clear, consider a consent motion under 1240.8(a)(5). Be realistic about the sanction range—especially with prior similar discipline—because the Court may opt for the high end absent strong mitigating circumstances.
• Public Protection Priority: Recognize that hardship to the lawyer’s other clients, even vulnerable ones, rarely outweighs public protection concerns when a pattern of neglect is evident. Consider interim measures (e.g., transition plans) to mitigate client harm during suspension.

Conclusion

Matter of Mulhearn reinforces two core propositions in New York’s disciplinary jurisprudence. First, consent discipline under 22 NYCRR 1240.8(a)(5) remains an efficient, viable pathway to resolve cases with clear violations, but it does not constrain the Court’s authority to impose a sanction at the upper end of an agreed range when aggravation—particularly a pattern of similar prior discipline—looms large. Second, attorneys practicing in bankruptcy matters must treat retention‑order reporting obligations as binding court mandates; noncompliance can trigger adverse actions in federal court and, as here, inform state disciplinary sanctions, including suspension.

By imposing a one‑year suspension, the Second Department signals that repeated neglect, communication failures, and court‑order noncompliance will be met with significant discipline, notwithstanding cooperation and remorse. The decision thus provides a clear benchmark for future consent‑discipline sanctions involving neglect and communication lapses, and it bolsters the expectation that lawyers will rigorously honor both state and federal court directives in all representations—especially those implicating the administration of estates and public oversight.