Expanded Reciprocal Discipline and the Diligence Imperative – A Commentary on Matter of DeMaio (2025)

1. Introduction

Matter of DeMaio, 2025 NY Slip Op 03016, is the First Department’s latest disciplinary opinion clarifying when New York courts will (a) impose more severe discipline than that administered in a “foreign” jurisdiction, and (b) re-characterise misconduct under the correct Rules of Professional Conduct (RPC). The respondent, veteran attorney John P. DeMaio, faced reciprocal discipline after the United States Court of Appeals for the Second Circuit publicly reprimanded him for repeated failures to comply with that court’s orders during a foreclosure appeal complicated by a bankruptcy filing.

Key Issues:

Whether any of the statutory/administrative defences to reciprocal discipline (22 NYCRR 1240.13) were available to DeMaio.
Which RPC provisions best captured his misconduct.
Whether the First Department should simply replicate the Second Circuit’s public reprimand or impose a harsher sanction.

2. Summary of the Judgment

The court granted the Attorney Grievance Committee’s (AGC) motion, imposed a six-month suspension, and denied DeMaio’s request for an evidentiary hearing. Although the Second Circuit had limited itself to a public reprimand (largely because DeMaio’s membership in its bar had lapsed), the First Department found:

No due-process or proof infirmity defences were available;
DeMaio’s conduct violated RPC 1.3(a) (diligence), 3.4(c) (disregarding court rulings), and 8.4(d) (prejudice to the administration of justice);
Additional aggravators – including a prior censure, four admonitions, and failure to self-report the federal discipline – justified an “upward departure” to suspension.

3. Analysis

3.1 Precedents Cited and Their Influence

Matter of Milara, 194 AD3d 108 (1st Dept 2021) – Restated the three exclusive defences to reciprocal discipline; the court applied this framework and found none available.
Matter of Blumenthal, 165 AD3d 85 (1st Dept 2018) – Emphasised “significant weight” to foreign sanctions; however, Blumenthal also recognised departures in “rare instances.” The court deemed DeMaio’s case such an instance because the Second Circuit’s penalty was constrained by bar-membership technicalities.
Matter of Colarossi, 161 AD3d 100 (1st Dept 2018) – Six-month suspension for disobeying court orders; cited as a comparator demonstrating New York’s tolerance range for similar neglect and disobedience.
Matter of Wellman, Crowe, Schneider (2022 trilogy) – Short suspensions where attorneys ignored tribunal rules; used by AGC to show that even practitioners with less prior misconduct received suspensions.
Matter of Geller, 218 AD3d 55 (1st Dept 2023) & Matter of Teichberg, 121 AD3d 319 (1st Dept 2014) – Cited by DeMaio for the “unjust/unnecessary” language; court distinguished them because those lawyers showed meaningful remorse or the misconduct context differed.

3.2 Legal Reasoning

a) Defences to Reciprocal Discipline

Under 22 NYCRR 1240.13, an attorney may avoid reciprocal discipline only by proving:

Denial of due process in the foreign forum;
Infirmity of proof;
Conduct does not constitute misconduct in New York.

The court found:

Due Process: DeMaio received multiple orders, voicemail reminders, and an opportunity to file papers; he even filed a (defective) motion.
Proof: The Second Circuit’s docket and orders were self-authenticating; his non-responses were undisputed.
Misconduct Equivalence: New York’s RPC equally prohibit disregarding court directives and prejudicing justice.

b) Correct Rule Classification

The AGC originally invoked RPC 1.16(d) (withdrawal without permission). The court, however, held that 1.3(a) (diligence and promptness) was the “better fit”: the essence of the misconduct was prolonged inertia, not a formal attempted withdrawal. This clarification tightens future charging precision.

c) Upward Departure Rationale

Foreign-court limitation: Reprimand turned on DeMaio’s lapsed Second Circuit bar status; New York faced no such constraint.
Aggravating history: One prior public censure (2021) and four prior admonitions (1996-2015) for analogous neglect and misconduct.
Failure to self-report: Violation of 22 NYCRR 1240.13(d) independently aggravates.
Lack of genuine remorse: Concurrent attempts to deny liability undermined his late-stage apology.

3.3 Impact of the Judgment

Heightened Risk of Suspension in Reciprocal Cases: Where a foreign jurisdiction “pulls its punches” for administrative reasons (e.g., attorney not admitted), New York will not hesitate to impose a harsher sanction.
Diligence Standard Clarified: Systematic non-communication with a tribunal is framed principally as a diligence violation (RPC 1.3), not merely an unauthorised withdrawal (RPC 1.16).
Reporting Obligation Reinforced: The decision underscores that failure to notify New York of out-of-state discipline is an aggravator almost certain to increase the penalty.
Limited-Scope Representation Caveat: Attorneys attempting to claim that their representation was “limited” must expressly delimit that scope in their notice of appearance, or they risk full continuing duties.

4. Complex Concepts Simplified

a) Doctrine of Reciprocal Discipline

When an attorney licensed in New York is disciplined elsewhere, New York may impose parallel (or greater) discipline without re-litigating the entire matter. Think of it as “full faith and credit” for attorney discipline. The respondent can only escape by proving one of three narrow defences (due-process denial, lack of proof, or non-misconduct).

b) “Upward Departure”

New York normally mirrors the foreign sanction. Departing “upward” means imposing more severe discipline than the other jurisdiction. The standard: departures are “rare” and require clear aggravating factors.

c) Automatic Bankruptcy Stay

Filing for bankruptcy triggers an automatic halt to many legal proceedings. Any pending appeal may be paused. Courts therefore need prompt updates. DeMaio’s failure to supply the basic status—even though not the bankruptcy counsel—meant the Second Circuit could not determine whether it had authority to proceed.

5. Conclusion

Matter of DeMaio establishes a two-fold precedent: (1) New York will enhance discipline where the foreign tribunal’s sanction is artificially constrained, and (2) protracted non-communication with a court is fundamentally a lapse in diligence under RPC 1.3(a). Practitioners should treat tribunal orders—no matter how burdensome—as non-negotiable, must separately and promptly report any external discipline, and should appreciate that “limited scope” representations require explicit, written boundaries. For the disciplinary bar, DeMaio provides a clear roadmap for arguing and determining when an upward departure is “just and proper.”