No Stayed Probationary Suspensions and Narrow Nunc Pro Tunc Relief in Reciprocal Discipline: Matter of Barocas (2025 NY Slip Op 04750)

Introduction

In Matter of Barocas (2025 NY Slip Op 04750), the Appellate Division, First Department, imposes reciprocal discipline on a New York-admitted attorney who was sanctioned in Tennessee for mishandling levied funds and engaging in dishonest conduct before the court. The case addresses two recurring questions in multijurisdictional practice:

• How New York calibrates reciprocal discipline when another jurisdiction has imposed a suspension with a probationary component.
• When, if at all, a reciprocal suspension will be made nunc pro tunc (retroactive) to the date of the foreign suspension.

The Attorney Grievance Committee (AGC) sought a one-year suspension in New York based on the Tennessee discipline. Respondent did not contest the fact of misconduct but urged either a one-year suspension nunc pro tunc to the date of his Tennessee suspension or, alternatively, a three-month suspension to mirror Tennessee’s “active” suspension period (with the remainder served on probation). The First Department granted reciprocal discipline, imposed a one-year suspension effective prospectively (30 days from the order), and rejected both the request for a three-month suspension and nunc pro tunc relief.

The decision crystallizes two important New York principles in attorney discipline: New York does not stay suspensions to create a probationary term, and nunc pro tunc relief is available only on a showing of “good cause,” typically involving substantial delay by the AGC or a respondent’s voluntary cessation of New York practice.

Summary of the Judgment

The court suspended respondent, Matthew David Barocas, from the practice of law in New York for one year, effective 30 days from the date of the order and until further order of the court. The court:

• Found reciprocal discipline appropriate under Judiciary Law § 90(2) and 22 NYCRR 1240.13 and concluded none of the regulatory defenses to reciprocal discipline applied.
• Rejected respondent’s argument for a three-month suspension to match Tennessee’s “active” suspension, reiterating that New York does not stay suspensions to impose probation.
• Denied nunc pro tunc relief, finding no “good cause” because the AGC did not substantially delay and respondent did not voluntarily cease New York practice.
• Ordered standard “desist and refrain” conditions and compliance with 22 NYCRR 1240.15 during suspension.

Factual Background

• Respondent obtained a default judgment for a landlord client in January 2019 for $130,091.62 and collected levied funds from two banks.
• One bank remitted $60,453.81 to the court; respondent retrieved those funds. The second bank levied and remitted $130,091.62 directly to respondent, which he deposited into his escrow account.
• Total collections approximated $190,545.43—about $60,453.81 more than the judgment. Respondent remitted $117,703.22 to the client, withheld $13,000 for fees and costs, and filed a Satisfaction of Judgment, but did not obtain a court order authorizing release/disbursement of the levied funds.
• After consulting another attorney, respondent retained the excess levied funds, then returned the $13,000 fee to the client in exchange for an agreement to bring a second action and use the excess funds to satisfy fees/expenses. A second action was filed and voluntarily dismissed six days later.
• A Tennessee court ordered respondent on March 10, 2020 to pay $130,091.62 to the court; after an unsuccessful appeal, respondent paid $60,405.81 on December 22, 2020 (funds borrowed from his father). Conflicting testimony at a contempt hearing—whether the funds remained in escrow and whether he would pay the full amount—led to civil and criminal contempt findings, later dismissed on appeal without opposition by the bankruptcy trustee and due to the DA’s declination.
• On December 7, 2023, respondent entered a conditional guilty plea in Tennessee admitting all but one amended charge and agreed to a one-year suspension (three months active; remainder probation). Tennessee approved the plea on January 18, 2024 and reinstated respondent on May 14, 2024, with the remainder on probation.

Analysis

Governing Framework and Jurisdiction

The First Department retains jurisdiction over attorneys it admitted, regardless of their current residence, under 22 NYCRR 1240.7(a)(2). Reciprocal discipline is governed by Judiciary Law § 90(2) and 22 NYCRR 1240.13. A New York court will impose discipline based on a foreign jurisdiction’s order unless the respondent proves one of three defenses codified in 22 NYCRR 1240.13:

• Lack of notice or opportunity to be heard in the foreign proceeding (due process deficiency).
• Infirmity of proof establishing the misconduct.
• The foreign misconduct does not constitute misconduct in New York.

The court emphasized that the respondent “freely and voluntarily” pleaded guilty in Tennessee and admitted the material facts of reckless misappropriation and related dishonesty. As such, none of the three defenses applied, and the path to reciprocal discipline was straightforward.

Precedents Cited and Their Influence

• Matter of Milara (194 AD3d 108, 110 [1st Dept 2021]): Reiterates the three limited defenses to reciprocal discipline. The court relied on Milara to reject any collateral attack on the Tennessee proceeding, given respondent’s plea and admissions.
• Matter of Kort (235 AD3d 35, 39 [1st Dept 2025]): Establishes that New York does not stay suspensions to create a probationary term and the rules do not authorize stayed probationary suspensions. Kort underpins the court’s refusal to mirror Tennessee’s “three months active plus probation” structure.
• Matter of Feldman (230 AD3d 13, 17 [1st Dept 2014]); Matter of Salo (77 AD3d 30, 38-39 [1st Dept 2010]); Matter of Byler (274 AD2d 275, 279 [1st Dept 2000]): These cases anchor the proposition that misconduct comparable to respondent’s—mishandling client or third-party funds coupled with dishonesty—typically results in a one-year suspension in New York.
• Matter of Peters (127 AD3d 103, 109 [1st Dept 2015]); Matter of Filosa (112 AD3d 162, 164 [1st Dept 2013]); Matter of Gilly (110 AD3d 164 [1st Dept 2013]): These decisions articulate when nunc pro tunc relief is appropriate—chiefly where the AGC delays substantially or the respondent has voluntarily ceased New York practice—neither of which was present here.

Legal Reasoning

The court’s reasoning proceeds in three steps:

1. Threshold entitlement to reciprocal discipline: Under 22 NYCRR 1240.13 and Milara, once the foreign discipline is established and none of the three defenses is viable, New York will impose discipline. Respondent conceded notice, opportunity, and factual guilt; the misconduct (reckless misappropriation and dishonesty to the court) plainly constitutes misconduct under New York’s Rules of Professional Conduct (see 22 NYCRR 1240.13[c]).
2. Sanction selection: The First Department calibrates sanctions to New York norms. Misconduct involving mishandling levied funds and dishonest conduct before a court normally draws a one-year suspension (Feldman; Salo; Byler). Although Tennessee structured the suspension with an “active” portion followed by probation, New York does not recognize stayed suspensions for probationary periods (Kort). Accordingly, the court rejected respondent’s invitation to impose only the “active” three months.
3. Rejection of nunc pro tunc relief: Nunc pro tunc suspensions are equitable and require “good cause.” The court found none. The AGC did not substantially delay filing its motion, and respondent did not voluntarily stop practicing in New York in anticipation of discipline. Without those equities (Peters; Filosa; Gilly), retroactivity was unwarranted.

Sanction Calibration: Why One Year?

The court aligns discipline with the substantive gravity of the misconduct and New York’s sanctioning norms. Key factors supporting one year:

• Handling and dispersal of levied funds without court authorization.
• Retention of excess levied funds and arrangement to use them in a second action.
• Conflicting testimony before the court concerning the funds—implicating honesty and candor.

While respondent cited mitigation—co-counsel’s support for his understanding, return of fees, borrowing funds to reimburse, self-reporting in New York, lack of prior discipline, and full compliance with Tennessee’s suspension and probation—these did not outweigh New York’s policy of imposing a full one-year suspension for similar conduct and its refusal to stay suspensions for probationary terms.

Nunc Pro Tunc Relief: When It Applies and Why It Failed Here

New York occasionally makes suspensions retroactive, but typically only where:

• The AGC substantially delayed seeking discipline, such that a prospective suspension would be inequitable; or
• The respondent voluntarily refrained from New York practice during the out-of-state suspension, making a separate prospective suspension unduly punitive.

Here, the record showed prompt notice by respondent and no significant AGC delay. There was also no indication that respondent voluntarily stopped practicing in New York pending discipline. The court thus declined to grant nunc pro tunc relief (Peters; Filosa; Gilly).

Treatment of Mitigating Factors

Respondent highlighted several mitigating considerations: advice from co-counsel, efforts to make restitution (including borrowing funds), prompt self-reporting, no prior discipline, and compliance with Tennessee’s order leading to reinstatement. The court acknowledged mitigation but placed greater weight on:

• The seriousness of mishandling court-levied funds and the lack of court authorization for disbursement.
• Dishonest or conflicting statements before a tribunal.
• New York’s need for sanction uniformity and deterrence in safeguarding trust account integrity.

Moreover, reinstatement in Tennessee—particularly where a portion of the suspension was served on probation—did not constrain New York’s distinct disciplinary prerogatives. New York’s policy framework and sanction precedents controlled.

Impact

This decision carries several practical and doctrinal implications:

• Probation in foreign jurisdictions will not translate into a stayed suspension in New York. Lawyers negotiating discipline elsewhere should anticipate that New York may impose the full suspension period prospectively, even if the other state structures the sanction with a short “active” portion.
• Nunc pro tunc relief remains narrow. To position for retroactivity, a respondent would need to demonstrate significant AGC delay or document a voluntary cessation of New York practice during the foreign suspension. Mere self-reporting and foreign compliance are not enough.
• Uniformity in escrow/trust-account discipline: The First Department reaffirmed that mishandling funds and dishonesty to a court typically warrant a one-year suspension, ensuring consistent treatment irrespective of residence or primary place of practice.
• Continuing jurisdiction: Attorneys admitted in New York remain subject to New York discipline even if they relocate or primarily practice elsewhere (22 NYCRR 1240.7[a][2]). Multijurisdictional practitioners must align their conduct with New York’s Rules of Professional Conduct at all times.

Complex Concepts Simplified

• Reciprocal discipline: When an attorney is disciplined in one jurisdiction, another jurisdiction where the attorney is admitted can impose corresponding discipline without relitigating the facts, unless narrow defenses apply (lack of due process, infirm proof, or conduct that is not misconduct in the second jurisdiction).
• Nunc pro tunc: Latin for “now for then.” A nunc pro tunc suspension is made retroactive, typically to align with a foreign suspension or to account for delay or voluntary abstention. It is discretionary and requires “good cause.”
• Stayed probationary suspension: A sanction in which a suspension is pronounced but “stayed” while the attorney serves a probationary period. New York’s First Department reiterates that its rules do not authorize such stayed probationary suspensions.
• Levied funds: Money seized by legal process (e.g., bank levy) to satisfy a judgment. Such funds often require court authorization for release and must be handled in accordance with court orders and trust accounting rules.
• Escrow/trust account: A special account where attorneys must keep client or third-party funds separate from their own, subject to strict recordkeeping and disbursement rules.
• Satisfaction of Judgment: A filing indicating that a judgment has been paid or satisfied. Filing prematurely or without proper disbursement authority can create legal and ethical complications.
• Civil vs. criminal contempt: Civil contempt aims to compel compliance or remedy a breach; criminal contempt punishes disobedience of court orders. Although the Tennessee contempt findings were ultimately dismissed, the underlying conduct remained relevant for attorney discipline.
• Conditional guilty plea in discipline: A negotiated plea where an attorney admits misconduct (often with some charge modifications) in exchange for agreed discipline, subject to court approval.

Key Citations from the Judgment

• Judiciary Law § 90(2)
• 22 NYCRR 1240.7(a)(2) (jurisdiction of admitting department)
• 22 NYCRR 1240.13 (reciprocal discipline; defenses; comity)
• 22 NYCRR 1240.15 (duties of disbarred or suspended attorneys)
• Matter of Milara, 194 AD3d 108, 110 (1st Dept 2021)
• Matter of Kort, 235 AD3d 35, 39 (1st Dept 2025)
• Matter of Feldman, 230 AD3d 13, 17 (1st Dept 2014)
• Matter of Salo, 77 AD3d 30, 38-39 (1st Dept 2010)
• Matter of Byler, 274 AD2d 275, 279 (1st Dept 2000)
• Matter of Peters, 127 AD3d 103, 109 (1st Dept 2015)
• Matter of Filosa, 112 AD3d 162, 164 (1st Dept 2013)
• Matter of Gilly, 110 AD3d 164 (1st Dept 2013)

Practical Takeaways for Practitioners

• Do not disburse levied funds without a court order authorizing release; maintain meticulous escrow records and promptly rectify any over-collection.
• Never make conflicting or inaccurate statements to a court, especially regarding the status of client or levied funds.
• When negotiating discipline in another state, assume New York will not honor a “probationary stay” and may impose a full suspension period.
• To preserve arguments for nunc pro tunc relief, document any voluntary cessation of New York practice and be prepared to show AGC delay if it occurs.
• Promptly self-report out-of-state discipline to the AGC, but recognize that self-reporting alone does not guarantee retroactive relief or a reduced sanction.

Conclusion

Matter of Barocas reinforces two clear rules in New York’s reciprocal discipline jurisprudence. First, New York will not convert a foreign suspension with probation into a stayed probationary suspension; instead, it will impose a suspension consistent with New York’s own standards and policies. Second, nunc pro tunc relief is exceptional and demands a concrete showing of “good cause,” typically AGC delay or voluntary cessation of New York practice—neither present here.

By imposing a one-year suspension prospectively, the First Department prioritized uniform sanctioning for mishandling funds and dishonesty to a tribunal—conduct that strikes at the heart of the profession’s fiduciary and candor obligations. For multistate practitioners, the decision is a pointed reminder: New York’s disciplinary framework stands on its own footing. Probationary structures elsewhere do not translate, and retroactive relief requires more than compliance abroad. The opinion thus provides a predictable roadmap for future reciprocal discipline cases while safeguarding public trust in the administration of justice.