Matter of Santos: Second Department Reaffirms Consent Discipline Parameters and a One‑Year Suspension Baseline for Attorney Neglect Coupled with Client Deception

Introduction

In Matter of Santos (2025 NY Slip Op 04184), the Appellate Division, Second Department, granted a joint motion for “discipline by consent” under 22 NYCRR 1240.8(a)(5) and imposed a one-year suspension on attorney Jimmy Miguel Santos. The case centers on the attorney’s neglect of a client’s employment-related lawsuit, failure to comply with multiple discovery orders leading to dismissal with prejudice, subsequent misrepresentations to the client about the case’s status, and nonpayment (later satisfied) of a malpractice judgment entered after default.

The decision is significant for at least three reasons:

It reaffirms the use and contours of “discipline by consent” as an efficient procedural path in attorney discipline.
It clarifies the weight the court assigns to aggravating and mitigating factors—especially prior nonpublic discipline, client deception, restitution of a malpractice judgment, and participation in a lawyer assistance monitoring program.
It signals that a one‑year suspension remains a proportional baseline where neglect is accompanied by dishonesty and a pattern of similar misconduct, consistent with prior Second Department authority.

Summary of the Judgment

The Grievance Committee for the Ninth Judicial District initiated a disciplinary proceeding with seven charges of professional misconduct. After an initial referral to a Special Referee under 22 NYCRR 1240.8(b)(1), the parties jointly moved for discipline by consent under 22 NYCRR 1240.8(a)(5). The respondent conditionally admitted key facts and that those facts established multiple violations of the Rules of Professional Conduct: rules 1.3(a)-(b) (diligence and neglect), 1.4(a)(3)-(4) (client communication), and 8.4(c), (d), and (h) (dishonesty, conduct prejudicial to the administration of justice, and conduct adversely reflecting on fitness).

Considering both aggravation (two Admonitions, a Letter of Advisement, and a Letter of Caution for similar conduct) and mitigation (cooperation, remorse, full payment of the malpractice judgment by July 2023, monitoring through the Lawyer Assistance Program, and significant health issues at the time of misconduct), the Court granted the motion and imposed a one-year suspension, commencing August 15, 2025. The respondent may not apply for reinstatement before May 15, 2026, and must comply with the conditions for suspended attorneys, including CLE and the “desist and refrain” mandates under Judiciary Law § 90 and 22 NYCRR 1240.15. The Court cited Matter of Moran, 219 AD3d 47, to confirm that the selected sanction aligns with its precedent under similar circumstances.

Detailed Background

The “Morillo matter” underpins the misconduct findings. In 2013, Santos filed suit in Supreme Court, New York County, against Bear Gallery, Inc. and others. Over the course of 2016–2017, the court issued several discovery directives and compliance orders. Despite repeated opportunities and extensions, Santos failed to comply. Defendants moved to strike the complaint under CPLR 3126(3), which authorizes striking pleadings for willful failure to disclose. Santos neither opposed the motion nor informed his client, Michelle Morillo, of the motion. On August 2, 2017, the court dismissed the action with prejudice.

Santos did not inform Morillo that the case had been dismissed and instead led her to believe it remained pending. After she learned of the dismissal, he told her he could move to vacate the order, but he did not file such a motion. Morillo later sued Santos for legal malpractice in 2018; Santos defaulted, and after inquest the court entered a money judgment of $42,740.36 on March 11, 2020. The judgment remained unpaid when disciplinary charges were filed, though Santos satisfied it in full in July 2023.

Analysis

Procedural Posture and Consent Discipline Mechanics

The matter commenced with a notice and verified petition (May 2023) alleging seven charges. After Santos answered, the case was referred to a Special Referee to hear and report, a standard step when factual development is necessary. However, the parties thereafter invoked 22 NYCRR 1240.8(a)(5)—the “discipline by consent” rule—which permits a negotiated resolution without a full hearing when a respondent conditionally admits facts and violations and the parties jointly recommend a sanction.

Under 22 NYCRR 1240.8(a)(5)(i)–(iii), the parties submitted a joint affirmation and the respondent’s affidavit. The affidavit contained conditional admissions and consent to the agreed sanction, given “freely and voluntarily.” The Court accepted those submissions and resolved the proceeding on consent terms, avoiding further litigation before the Referee and conserving disciplinary and judicial resources.

Precedents and Authorities Cited

Matter of Moran, 219 AD3d 47: Cited to confirm that a one-year suspension is consistent with the Court’s sanctions under comparable circumstances. Although the opinion does not detail Moran’s facts, its citation here operates as a proportionality benchmark for cases combining neglect, noncompliance with court directives, and dishonesty or client deception.
22 NYCRR 1240.8(a)(5): Authorizes discipline by consent based on conditional admissions and a jointly proposed sanction. The rule’s affidavit requirement ensures that the respondent acknowledges the factual basis and freely consents to discipline.
22 NYCRR 1240.8(b)(1): Governs reference to a Special Referee to hear and report. The case illustrates that a pending reference does not preclude later resolution by consent.
22 NYCRR 1240.15 and Judiciary Law § 90: Define obligations of suspended attorneys, including the “desist and refrain” prohibitions and the affidavit of compliance.
22 NYCRR 1240.16: Sets reinstatement procedures and proof requirements, including compliance during suspension and CLE obligations.
22 NYCRR 691.11(a): Specifies continuing legal education requirements applicable to Second Department attorneys, which must be satisfied during the suspension period as a condition of reinstatement.
CPLR 3126(3): Authorizes striking pleadings for willful failure to comply with discovery orders; its invocation in the underlying civil action led to dismissal with prejudice, catalyzing the disciplinary violations.
Rules of Professional Conduct:
- Rule 1.3(a)–(b): Diligence and neglect of legal matters.
- Rule 1.4(a)(3)–(4): Duty to keep clients reasonably informed and to respond to reasonable requests for information.
- Rule 8.4(c), (d), (h): Prohibitions on dishonesty; conduct prejudicial to the administration of justice; and conduct adversely reflecting on fitness.

Legal Reasoning and Sanction Selection

The Court’s reasoning proceeds in three steps:

Factual foundation and admissions: Relying on the joint stipulation and the respondent’s affidavit, the Court found that the admitted conduct matched the elements of the charged rules violations. The admissions included neglecting discovery obligations, failing to oppose a dispositive motion, not informing the client of a case-ending dismissal, and making misleading statements about the case’s status and intended corrective action.
Aggravating and mitigating factors: The Court expressly weighed both. Aggravation included Santos’s prior nonpublic discipline (two Admonitions, one Letter of Advisement, and one Letter of Caution) for similar behavior, evidencing a pattern rather than an isolated lapse. Mitigation included cooperation with the investigation, acknowledgment of wrongdoing, remorse, full payment of the malpractice judgment by July 2023, participation in the Lawyer Assistance Program for monitoring, and the respondent’s health challenges (depression and uncontrolled metabolic/blood pressure conditions) at the time of the misconduct.
Proportionality and precedent: The Court concluded that a one‑year suspension is warranted “in view of the totality of the circumstances,” citing Matter of Moran as confirming that such a sanction aligns with the Second Department’s precedent under similar circumstances. The mix of neglect, client deception, and a disciplinary history drove the sanction above admonitory outcomes and into suspension territory despite substantial mitigation.

Weight Given to Aggravation and Mitigation

The decision reflects the Second Department’s consistent weighting:

Prior similar discipline is a powerful aggravator. Repetition despite earlier corrective measures signals inadequate rehabilitation and heightens the need for a protective sanction.
Dishonesty to a client compounds the underlying neglect. It undermines trust in the profession and aggravates sanctions even where the underlying error might otherwise draw lesser discipline.
Remedial steps matter but may not offset patterns of misconduct. Restitution (paying the malpractice judgment) and structured support (LAP monitoring) were expressly credited. So too were cooperation, admissions, and remorse. Yet, where a pattern exists, the Court still imposed a suspension rather than a public censure.
Health conditions are mitigating, not exculpatory. The respondent’s depression and uncontrolled medical conditions at the relevant time were recognized, but they did not obviate the need for suspension in light of the totality.

Sanction Terms and Reinstatement Conditions

The order imposes standard and specific conditions:

Suspension: One year beginning August 15, 2025; the respondent may not apply for reinstatement before May 15, 2026.
Compliance: During suspension, the respondent must refrain from practicing law in any capacity, appearing in tribunals, giving legal opinions or advice, or holding himself out as an attorney. If he possesses an Office of Court Administration secure pass, it must be returned and certified in the affidavit of compliance.
Proof on reinstatement: The application must show full compliance with the suspension order and the rules for disbarred/suspended attorneys (22 NYCRR 1240.15), completion of applicable CLE (22 NYCRR 691.11(a)), and otherwise proper conduct (22 NYCRR 1240.16).

Practical Impact and Forward-Looking Implications

Consent discipline remains a viable and efficient pathway. Respondents who can accept responsibility may resolve cases without a contested hearing while receiving a sanction calibrated to precedent. This decision demonstrates the Court’s willingness to accept such resolutions even after a Special Referee referral, provided the statutory safeguards are met.
One‑year suspensions as a benchmark for “neglect-plus-deception.” Where neglect is compounded by misrepresentations to a client and a prior history, a one-year suspension continues to be a common and proportionate outcome in the Second Department.
Restitution helps, but timing matters. The Court credited the eventual payment of the malpractice judgment. Attorneys facing discipline should address financial harm expeditiously; doing so may meaningfully mitigate, though not eliminate, sanction exposure.
Lawyer Assistance Program participation is meaningful mitigation. Documented monitoring and treatment can mitigate discipline, particularly where health issues contributed to misconduct. Still, mitigation operates within a proportionality framework; serious patterns may still warrant suspension.
Discovery noncompliance has disciplinary consequences beyond the civil case. CPLR 3126(3) dismissals for willful noncompliance can become the foundation for ethical violations (neglect, prejudice to justice, dishonesty if the client is misled).
Communication failures are sanctionable in their own right. Rules 1.4(a)(3)-(4) require lawyers to keep clients informed and to respond to reasonable requests. Even absent ultimate dismissal, sustained communication failures may draw discipline; when combined with a dismissal and misrepresentation, suspension becomes likely.

Complex Concepts Simplified

Discipline by consent (22 NYCRR 1240.8[a][5]): A negotiated resolution in which the attorney conditionally admits facts and rule violations and consents to a specific sanction, subject to Court approval. It streamlines proceedings and avoids a full evidentiary hearing.
Special Referee (22 NYCRR 1240.8[b][1]): A judicial officer appointed to conduct hearings and report findings in disciplinary matters. A case can still be resolved by consent after a referral.
CPLR 3126(3) dismissal: A trial court’s power to strike pleadings as a sanction for willful failure to comply with discovery orders. A dismissal “with prejudice” ends the case on the merits.
Rules 1.3 and 1.4: Rule 1.3 requires diligence and prohibits neglect; Rule 1.4 mandates reasonable client communication and prompt responses to reasonable inquiries.
Rule 8.4(c), (d), (h): Prohibit dishonesty or deceit; conduct prejudicial to the administration of justice; and conduct adversely reflecting on a lawyer’s fitness.
Admonitions/Letters of Advisement/Caution: Forms of nonpublic disciplinary or remedial communications used by grievance authorities. Multiple such actions, especially for similar misconduct, weigh heavily in aggravation.
Inquest: A court proceeding to determine damages after a default on liability—here, leading to a money judgment against the attorney in a malpractice action.
Lawyer Assistance Program (LAP): A program providing support and monitoring for lawyers dealing with mental health or substance issues. Participation can be a mitigating factor.
Desist and refrain order (Judiciary Law § 90; 22 NYCRR 1240.15): A suspension requires the attorney to stop practicing law in all forms, stop giving legal advice, and stop holding out as a lawyer, among other restrictions. Noncompliance can itself be grounds for further discipline.
OCA secure pass: An identification pass for court access; suspended attorneys must return it and certify compliance.

Key Takeaways for Practitioners

Treat discovery orders as immovable deadlines; if circumstances change, seek extensions or modifications promptly and in writing.
Never allow client communications to lapse—document updates, especially when dispositive motions are pending or orders are issued.
If a case is dismissed, inform the client immediately, provide options with realistic timelines, and promptly file any good-faith vacatur or appellate applications.
Address malpractice exposure quickly. Cooperate with carriers, appear in the action, and resolve judgments; prompt restitution can substantially mitigate discipline.
If health issues impair practice, seek help early (including LAP), reduce caseload if necessary, and implement monitoring to prevent client harm.
Consider consent discipline when liability is clear and mitigation is strong. A candid, well-documented consent submission can positively influence sanction outcomes and timelines.

Conclusion

Matter of Santos reinforces core disciplinary themes in the Second Department: persistent neglect, disobedience of court orders, and client deception will yield serious sanctions; prior nonpublic discipline for similar conduct is a powerful aggravator; and a one‑year suspension is an appropriate, precedent-aligned response under such circumstances. At the same time, the Court’s analysis underscores that meaningful mitigation—cooperation, remorse, restitution, and treatment/monitoring—matters and will be credited in crafting proportionate discipline.

Procedurally, the decision illustrates the continued utility of 22 NYCRR 1240.8(a)(5) consent discipline to resolve cases efficiently without sacrificing rigor. Substantively, it offers clear guidance to the bar: diligence and candor to clients are nonnegotiable, and attorneys must proactively correct errors, communicate transparently, and seek support when personal or health challenges threaten their ability to practice competently.

In short, the case both reaffirms the consent discipline framework and clarifies that a one-year suspension is a well-anchored baseline where neglect is compounded by deception and recidivism—even where substantial mitigation is present.