Immediate Suspension Standard for Attorney Non-Cooperation under 22 NYCRR 1240.9

Introduction

Matter of Kaufman (2025 NYSlipOp 01893) addresses the Attorney Grievance Committee’s request for an immediate interim suspension of attorney Alan Joel Kaufman, based on his failure to perform agreed legal services, refusal to refund a retainer, repeated non-cooperation with the AGC’s inquiries, and refusal to comply with a judicial subpoena. Decided by the Appellate Division, First Department, on April 1, 2025, the per curiam opinion establishes that willful non-response to lawful demands and subpoenas constitutes “conduct immediately threatening the public interest” under 22 NYCRR 1240.9(a)(1) and (3).

The key parties are the Attorney Grievance Committee for the First Judicial Department (Petitioner) and Alan Joel Kaufman, an attorney admitted in 1971 (Respondent). The principal issues are: (1) failure to render or refund legal services, (2) failure to answer the AGC’s repeated inquiries, and (3) failure to comply with a judicial subpoena duces tecum.

Summary of the Judgment

The court granted the AGC’s motion for immediate interim suspension under Judiciary Law § 468-a and 22 NYCRR 1240.9(a)(1) & (3). It found that Respondent:

Accepted a $350 retainer to review a contract, then neither reviewed it nor refunded the fee;
Ignored four AGC demands—by email and certified mail—to answer the underlying client complaint;
Refused to comply with a judicial subpoena duces tecum for production of client files;
Thus engaged in conduct “immediately threatening the public interest.”

Accordingly, Kaufman was suspended effective immediately, ordered to cease all legal practice, to comply with suspension-period rules (22 NYCRR 1240.15), and to return any secure court credentials.

Analysis

Precedents Cited

The court relied on three recent First Department decisions to illustrate the standard for suspension upon non-cooperation:

Matter of Grant (224 AD3d 1 [1st Dept 2024]): Attorney suspended where no response was made to AGC inquiries and subpoenas.
Matter of Amankwaa (221 AD3d 107 [1st Dept 2023]): Affirming suspension for willful disregard of AGC demands during investigation.
Matter of Tessler (215 AD3d 61 [1st Dept 2023]): Suspension upheld where subpoena compliance was refused and no cooperation with disciplinary process.

These cases confirm that under 22 NYCRR 1240.9(a)(1) & (3), an attorney’s default or refusal to respond to investigation demands or subpoenas alone can justify interim suspension.

Legal Reasoning

The court’s reasoning follows a straightforward application of the disciplinary rules:

Rule 1240.9(a)(1) permits interim suspension upon “default in responding to a petition, notice to appear for formal interview, examination, or pursuant to subpoena.” Kaufman ignored multiple demands to answer and a judicial subpoena.
Rule 1240.9(a)(3) authorizes suspension for failure “to comply with a lawful demand of the Court or a Committee.” Here, Kaufman’s deposit of a retainer check after instructions to destroy it and his failure to refund the retainer underscored his willful non-cooperation.
Threat to public interest: The court emphasized that non-cooperation impedes the AGC’s ability to protect the public and enforce ethical standards, thereby constituting an immediate threat.

Impact

Matter of Kaufman reinforces the uncompromising standard for attorney cooperation in disciplinary investigations. Key takeaways for practitioners and disciplinary bodies include:

Prompt response to AGC communications and compliance with subpoenas is mandatory;
Failure to refund unearned fees or to perform retained services may compound sanctions;
Interim suspension can be secured without full merits adjudication when non-cooperation is established;
Future cases will cite Kaufman as a clear example of suspension based solely on refusal to engage with the investigative process.

Complex Concepts Simplified

Judicial Subpoena Duces Tecum: A court-issued order requiring an attorney to appear and produce specified documents (here, client files). Kaufman’s refusal, even when personally served, triggered suspension rules.

Interim Suspension: A temporary removal from practice granted before a final disciplinary decision. Rules 1240.9(a)(1) & (3) lower the threshold for suspension when non-cooperation impedes the public interest.

Judiciary Law § 468-a: Statutory authority allowing the Appellate Division to suspend attorneys who engage in misconduct “immediately threatening the public interest,” including non-responders to disciplinary proceedings.

Conclusion

Matter of Kaufman reaffirms that attorneys who willfully ignore or evade disciplinary inquiries and subpoenas face immediate suspension. By applying 22 NYCRR 1240.9(a)(1) & (3) and Judiciary Law § 468-a, the First Department underscores the non-negotiable duty of counsel to cooperate with the AGC. This decision will serve as a pivotal precedent for swift interim suspensions whenever an attorney’s non-cooperation threatens the integrity of the disciplinary system and the protection of the public.