Matter of Gellene: Reciprocal Discipline Requires Independent New York “Rule-Equivalency” Review Despite Default

1. Introduction

Matter of Gellene (2026 NY Slip Op 05361 [3d Dept Sept. 17, 2026]) addresses reciprocal attorney discipline—i.e., when New York is asked to impose discipline based on a lawyer’s sanctions in another jurisdiction. The respondent, Alfred V. Gellene, admitted in New York in 1980 and New Jersey in 1979, had an extensive New Jersey disciplinary history (private reprimands, a letter of admonition, a public reprimand, and a 2022 three-month suspension) and had already been suspended in New York since 2004 for failing to comply with biennial registration requirements.

The Attorney Grievance Committee for the Third Judicial Department (AGC) moved for discipline in New York based on the New Jersey record. Although respondent was notified, he did not respond. The key issues were (1) what effect respondent’s nonresponse has under New York’s reciprocal-discipline procedure; (2) whether the established New Jersey misconduct “maps” to violations of New York’s ethics rules across different rule regimes over time (former Code of Professional Responsibility versus current Rules of Professional Conduct); and (3) what sanction should be imposed in New York given aggravating factors.

2. Summary of the Opinion

The Third Department granted AGC’s motion in part and imposed a one-year suspension, effective immediately and until further order. Even though respondent defaulted and thereby waived available defenses, the Court held it must still independently determine—because it is a legal question—whether the foreign misconduct would constitute rule violations in New York under the rules applicable at the relevant times.

The Court found that respondent’s New Jersey misconduct (neglect, lack of diligence, failure to communicate, failure to comply with court orders, and failure to cooperate with disciplinary authorities) largely constituted New York rule violations, including under the former Code of Professional Responsibility. The Court declined, however, to find a New York violation corresponding to one New Jersey rule (New Jersey rule 3.2) because AGC did not specifically allege that corollary violation.

3. Analysis

3.1. Precedents Cited

  • Matter of Wiener, 251 AD3d 1336, 1337 [3d Dept 2026]
    Cited for the proposition that a respondent’s failure to respond to a reciprocal-discipline motion waives the limited defenses available under 22 NYCRR § 1240.13(b). The Court used Wiener both procedurally (waiver) and comparatively at sanctioning (one-year suspension as an appropriate response where an attorney demonstrates disregard for the disciplinary process).
  • Matter of Cruikshank, 230 AD3d 901, 902-903 [3d Dept 2024]
    Supports the Court’s insistence that it must still decide the “equivalency” question—whether foreign misconduct constitutes New York violations— because that determination presents questions of law. Gellene relies on Cruikshank to separate “default/waiver” from the Court’s independent legal gatekeeping function.
  • Matter of Bassetti, 143 AD3d 27, 29 [1st Dept 2016]; Matter of Weichsel, 135 AD3d 156, 157 [1st Dept 2015]; Matter of Schlem, 308 AD2d 220, 222 [1st Dept 2003]; Matter of Bosies, 217 AD2d 358, 361 [1st Dept 1995]
    These First Department cases were central to the “rule-equivalency” analysis. The Third Department used them to confirm that violations of New Jersey’s Rules of Professional Conduct rules 1.1 (a), (b), 1.3, and 1.4 (a) correspond to neglect under former Code of Professional Responsibility DR 6-101 (A) (3) (22 NYCRR former § 1200.30). Notably, the Court also relied on Matter of Bosies to conclude—despite AGC’s lack of specific argument—that New Jersey rule 1.1 (b) likewise violates DR 6-101 (A) (3).
  • Matter of Radshaw, 213 AD3d 1193, 1194 [3d Dept 2023]
    Used on aggravation: the Court treated respondent’s failure to report his foreign disciplinary history to AGC and the Court as a serious factor, consistent with Radshaw and the reporting obligations referenced in 22 NYCRR § 1240.13(d).
  • 3 AD3d 662, 664 [3d Dept 2004] (respondent’s prior New York suspension)
    Not a general precedent so much as the respondent’s own history, but it framed the case’s sanction analysis. The Court emphasized that respondent’s New York registration suspension had persisted since 2004 and remained uncured, reinforcing the conclusion that he disregarded his professional obligations in New York.

3.2. Legal Reasoning

A. Procedure under 22 NYCRR § 1240.13: waiver is not the end of the inquiry

The Court began with the reciprocal-discipline framework: “Upon application” with proof of foreign discipline, the Court directs the attorney to show cause why discipline should not be imposed in New York (22 NYCRR § 1240.13[a]). The respondent may assert only limited defenses (22 NYCRR § 1240.13[b]). Because Gellene did not respond, he waived those defenses (citing Matter of Wiener, 251 AD3d 1336, 1337 [3d Dept 2026]).

Critically, the Court held that waiver does not relieve it of deciding whether the proven foreign misconduct constitutes New York rule violations at the relevant times, because that is a question of law (citing Matter of Cruikshank, 230 AD3d 901, 902-903 [3d Dept 2024]). This is the opinion’s core operational rule: a defaulting lawyer can forfeit defenses, but the Court still performs an independent “legal equivalency” review.

B. Mapping New Jersey misconduct to New York rules across rule regimes

The Court addressed multiple disciplinary events spanning decades, requiring it to apply: (i) former Third Department reciprocal-discipline rules (Rules of App Div, 3d Dept [22 NYCRR] former § 806.19), (ii) former New York Code of Professional Responsibility provisions (22 NYCRR former § 1200.0 et seq.), and (iii) current New York Rules of Professional Conduct (22 NYCRR 1200.0). The Court’s approach was to compare the substance of the foreign rules and findings to the closest New York analogs.

C. 1990–1991 New Jersey private reprimands and 2009 admonition: neglect and diligence

The Court accepted AGC’s position that the misconduct underlying the 1990–1991 private reprimands and the 2009 letter of admonition— including failures to pursue matters, respond to clients, answer interrogatories, and properly handle an appellate transfer—amounted to neglect. Under the former Code, neglect of a legal matter was prohibited by DR 6-101 (A) (3) (22 NYCRR former § 1200.30).

The Court bolstered this equivalency finding by relying on First Department authority holding that New Jersey Rules of Professional Conduct rules 1.1 (a), (b), 1.3, and 1.4 (a) correspond to DR 6-101 (A) (3), including Matter of Bassetti, 143 AD3d 27, 29 [1st Dept 2016], Matter of Weichsel, 135 AD3d 156, 157 [1st Dept 2015], Matter of Schlem, 308 AD2d 220, 222 [1st Dept 2003], and Matter of Bosies, 217 AD2d 358, 361 [1st Dept 1995].

The Court also noted a pleading/charging limit: although New Jersey rule 3.2 might correspond to DR 7-101 (A) (1) (22 NYCRR former § 1200.33), the Court declined to so hold because AGC did not specifically allege that violation. This reflects a disciplined approach: reciprocal discipline is not an invitation to declare every conceivable New York violation absent a properly framed request.

D. 2010 New Jersey reprimand: rejecting a “no corollary rule” argument

The 2010 discipline included failures to file appellate briefs, respond to court inquiries and orders to show cause, and communicate with the client (New Jersey rules 1.1 [a], [b], 1.3, 1.4 [b], 3.4 [c], 8.4 [d]).

The Court rejected AGC’s contention that violations of New Jersey rules 1.3 and 1.4 (b) would not constitute New York rule violations under the former Code “absent specific corollary rules.” The Court reasoned that its earlier analysis—supported by the First Department cases—already established the relevant equivalency through DR 6-101 (A) (3) (neglect). It then found additional equivalencies: New Jersey rules 3.4 (c) and 8.4 (d) mapped to DR 7-106 (A) (22 NYCRR former § 1200.37) and DR 1-102 (A) (5) (22 NYCRR former § 1200.3), among others.

E. 2022 New Jersey three-month suspension: modern New York RPC analogs

For the 2022 New Jersey suspension (New Jersey rules 1.1 [a], 1.3, 1.4 [b], 8.1 [b]), the Court concluded the conduct would violate current New York rules because the provisions are “similar, if not identical,” citing New York Rules of Professional Conduct rules 1.3 (a), (b), 1.4 (a) (3), (4), and 8.4 (d). (Notably, the Court used rule 8.4(d) as the New York counterpart when addressing noncooperation-type misconduct described in the New Jersey order.)

F. Sanction selection: protective purpose and aggravating factors

The Court emphasized it is not required to mirror the foreign jurisdiction’s sanction. Instead, under 22 NYCRR § 1240.8(b)(2), the sanction must protect the public, maintain the honor and integrity of the profession, and deter similar misconduct.

The Court found substantial aggravation: (1) respondent’s failure to report his “extensive disciplinary history” to AGC and the Court (citing Matter of Radshaw, 213 AD3d 1193, 1194 [3d Dept 2023] and 22 NYCRR § 1240.13[d]); and (2) longstanding failure to cure biennial registration delinquency—“more than 15 registration periods”—with the resulting suspension still in place (referencing 3 AD3d 662, 664 [3d Dept 2004] and Judiciary Law § 468-a[5]). Combined with his default on the motion, the Court inferred disregard for his status as a New York attorney and imposed a one-year suspension (citing Matter of Wiener, 251 AD3d 1336, 1338 [3d Dept 2026]).

3.3. Impact

  • Independent “equivalency” review is mandatory even on default. The Court’s reliance on Cruikshank and its explicit statement that legal equivalency must still be evaluated reinforces a due-process-tinged structural safeguard: New York discipline cannot rest solely on nonappearance; it must rest on a legal conclusion that the conduct violates New York’s rules.
  • Functional, not hyper-technical, comparison of ethical duties. By rejecting the suggestion that New Jersey diligence/communication violations lack New York corollaries under the former Code, the Court signaled that “neglect” (DR 6-101 [A] [3]) can serve as an umbrella corollary for foreign diligence/communication failures, particularly when supported by established interdepartmental case law.
  • Charging discipline remains cabined by what AGC actually alleges. The Court’s refusal to find a DR 7-101 (A) (1) violation based on New Jersey rule 3.2—despite acknowledging it “may” fit—encourages precision in reciprocal-discipline motions and prevents post hoc expansion of the alleged New York violations.
  • Aggravation: nonreporting and chronic registration delinquency materially increase sanction exposure. The opinion underscores that reciprocal discipline is not assessed in a vacuum; New York-specific compliance failures (like Judiciary Law § 468-a registration defaults) and failures to report foreign discipline can independently drive a harsher result.

4. Complex Concepts Simplified

Reciprocal discipline
A process where New York considers imposing attorney discipline based on discipline imposed elsewhere. New York does not automatically copy the other jurisdiction’s result; it decides whether the conduct violates New York’s rules and what sanction best serves New York’s protective purposes.
Limited defenses under 22 NYCRR § 1240.13(b)
In reciprocal-discipline matters, the attorney’s defenses are narrow (for example, procedural unfairness in the foreign case or a lack of proof). If the attorney does not respond, those defenses are treated as waived—yet the Court still decides the legal equivalency issue.
“Rule equivalency” / “corollary rules”
The Court compares the foreign jurisdiction’s ethics rules and the foreign findings to New York’s ethics rules in effect at the time, to determine whether the same conduct would be misconduct in New York.
Former Code of Professional Responsibility vs. current Rules of Professional Conduct
New York’s attorney ethics framework changed over time. Older conduct may be analyzed under the former Code (including “DR” provisions such as DR 6-101), while more recent conduct may be analyzed under the current Rules of Professional Conduct (rules 1.3, 1.4, 8.4, etc.).
Biennial registration delinquency (Judiciary Law § 468-a)
New York attorneys must periodically register and pay required fees. Failure to do so can result in suspension. In Gellene, the respondent’s long-running failure to cure these deficiencies significantly aggravated the sanction outcome.

5. Conclusion

Matter of Gellene reinforces a key reciprocal-discipline principle in the Third Department: even where an attorney defaults and waives the defenses available under 22 NYCRR § 1240.13(b), the Court must still independently determine—as a legal question—whether the foreign misconduct constitutes violations of New York’s applicable ethics rules. The decision also illustrates a pragmatic approach to cross-jurisdictional rule comparison (treating diligence/communication failures as falling within New York’s “neglect” rule under the former Code), while simultaneously insisting on disciplined pleading boundaries (declining to find an unalleged corollary violation).

On sanction, the case highlights that persistent New York compliance failures—especially nonreporting of foreign discipline and chronic Judiciary Law § 468-a delinquency—can substantially aggravate reciprocal discipline, leading here to an immediate one-year suspension intended to protect the public and the integrity of the bar.