Out-of-State Conviction Discipline Does Not Require a New York Penal-Law Analog (Matter of Gainsburg)

1. Introduction

Matter of Gainsburg (2026 NY Slip Op 02838 [App Div, 2d Dept May 6, 2026]) is an attorney discipline decision arising from respondent Barry Robert Gainsburg’s Florida misdemeanor conviction for improper exhibition of a dangerous weapon (Florida Statutes § 790.10). The Grievance Committee for the Tenth Judicial District notified the Appellate Division, Second Department, which previously determined the Florida offense was not a “serious crime” under Judiciary Law § 90(4)(d), and therefore directed a hearing before a Special Referee under 22 NYCRR 1240.12(c)(3)(iii) to determine whether final public discipline should be imposed and, if so, the appropriate sanction.

The central legal issue became procedural and jurisdictional in character: whether, in a 22 NYCRR 1240.12(c)(3)(iii) hearing premised on an out-of-state conviction (already found not to be a “serious crime”), the tribunal must also determine that the underlying conduct would constitute a crime in New York. The Special Referee effectively treated that question as relevant; the Appellate Division held it is not required by the governing framework.

2. Summary of the Opinion

The Court:

  • Confirmed the Special Referee’s core finding that the respondent failed to meet his burden to show why a final order of public discipline should not be issued.
  • Disaffirmed the Special Referee’s determination that the respondent’s conduct did not constitute a New York crime, holding that such a determination is not required under Judiciary Law § 90(4) or 22 NYCRR 1240.12 for purposes of imposing discipline based on an out-of-state conviction.
  • Imposed a six-month suspension, effective immediately, with reinstatement eligibility no earlier than October 7, 2026, and with the usual compliance obligations under 22 NYCRR 1240.15 and 1240.16.

In selecting sanction, the Court considered the respondent’s prior disciplinary history, the arrest circumstances, and the fact of a jury conviction for improper exhibition of a dangerous weapon, and concluded that a six-month suspension was warranted.

3. Analysis

3.1. Precedents Cited

People v Jurgins (26 NY3d 607)

The Special Referee cited People v Jurgins (26 NY3d 607) in explaining why, on the record before him, he was “disinclined” to find that the respondent committed acts constituting a New York crime—because the disciplinary record did not contain all trial-level facts and evidence presented to the Florida jury, making a clean element-by-element comparison difficult. In criminal law, Jurgins is associated with careful comparability analysis when legal consequences turn on whether an out-of-state offense matches New York definitions.

The Appellate Division did not reject the general caution reflected in Jurgins; rather, it held that the caution was misapplied because the comparability inquiry itself was not a prerequisite to discipline under the controlling attorney-discipline provisions.

Matter of Batsiyan (199 AD3d 80)

The Court cited Matter of Batsiyan (199 AD3d 80) as a comparator for the proposition that, under the totality of circumstances, a six-month suspension is an available and appropriate sanction in matters involving misconduct of similar disciplinary gravity. The citation functions chiefly as a sanctioning benchmark, reinforcing proportionality and consistency in disciplinary outcomes.

Matter of Gainsburg (233 AD3d 49)

The opinion references a separate, unrelated disciplinary proceeding in which the respondent was suspended for six months commencing November 8, 2024 (Matter of Gainsburg, 233 AD3d 49). The Court treated that history as relevant to sanction selection here, underscoring that discipline is imposed not in a vacuum but with attention to an attorney’s overall disciplinary record.

3.2. Legal Reasoning

The doctrinal core of the decision is the Court’s clarification of the governing framework under Judiciary Law § 90(4) and 22 NYCRR 1240.12:

  1. Step 1: Classification of the conviction. The Court had already determined (by its April 4, 2024 order) that the Florida misdemeanor did not constitute a “serious crime” within the meaning of Judiciary Law § 90(4)(d).
  2. Step 2: Show-cause hearing for final discipline. Because the conviction was not a “serious crime,” the matter proceeded under 22 NYCRR 1240.12(c)(3)(iii), which permits the Court to direct the respondent to show cause at a hearing why a final order of suspension, censure, or disbarment should not be made based upon the conviction.
  3. Key holding: No New York penal-law equivalency requirement. The Court held that neither Judiciary Law § 90(4) nor 22 NYCRR 1240.12 requires the out-of-state crime to also be a New York crime before the Court may impose discipline based on the conviction. Consequently, the Special Referee’s “New York crime” determination was “improper” as a matter of the applicable disciplinary rules.
  4. Burden allocation and failure of proof in mitigation. The Court agreed with the Special Referee that the respondent did not carry his burden to demonstrate why final public discipline should not issue. Although the Special Referee credited the respondent as “mostly candid and truthful,” he found the account incomplete and the respondent’s sincerity “less than enthusiastic,” which supported the conclusion that the respondent failed to make the showing required to avoid public discipline.
  5. Sanction selection under the totality of circumstances. In setting the sanction at six months’ suspension, the Court emphasized: (i) prior disciplinary history, (ii) the arrest circumstances (threatening conduct with a bat and hostile conduct toward officers and others), and (iii) the fact of a jury conviction and sentence. Mitigating factors (mental health issues, medication lapse, remorse, pro bono and nonprofit involvement) were noted but did not preclude suspension.

3.3. Impact

Procedural streamlining in conviction-based discipline. The most significant forward-looking effect is a clearer boundary around what must be proved and decided in a 22 NYCRR 1240.12(c)(3)(iii) proceeding. After Matter of Gainsburg:

  • Disciplinary authorities and referees should not treat a “New York crime” comparability analysis as a required element when discipline is premised on an out-of-state conviction that is not a “serious crime.”
  • The focus shifts more sharply to (i) the fact and nature of the conviction and (ii) sanction-relevant circumstances, including aggravation and mitigation, rather than litigating an equivalency question that the rules do not demand.
  • The decision may reduce contested satellite litigation over incomplete foreign trial records when the comparability issue is not legally determinative, thereby promoting consistency and administrative efficiency in discipline.

Substantive disciplinary policy. The ruling also reflects a policy choice embedded in New York’s discipline system: an attorney’s conviction—even of a non-“serious” offense—can warrant public discipline without needing to re-prosecute the conduct through the lens of New York criminal elements.

4. Complex Concepts Simplified

  • “Serious crime” (Judiciary Law § 90[4][d]). A statutory category of offenses that triggers special disciplinary consequences and procedures. Here, the Court had already ruled the Florida misdemeanor was not a “serious crime,” so the case proceeded under a show-cause mechanism rather than serious-crime automatic processes.
  • 22 NYCRR 1240.12(c)(3)(iii) show-cause hearing. A procedure used when the Court, upon learning of a conviction that is not deemed a “serious crime,” directs the attorney to appear and show why the Court should not impose final public discipline based on that conviction.
  • “Confirm” vs. “disaffirm” a referee’s report. To confirm is to adopt the referee’s findings/recommendations; to disaffirm is to reject them in whole or in part. Here, the Court confirmed the referee’s key conclusion about the respondent’s failure to meet his burden, but disaffirmed the unnecessary “New York crime” determination.
  • Mitigation. Evidence offered to reduce the severity of discipline (e.g., mental health struggles, treatment, remorse, pro bono service). Mitigation may influence the sanction, but it does not automatically eliminate public discipline when the underlying conviction and circumstances warrant it.

5. Conclusion

Matter of Gainsburg establishes a clear procedural rule in New York attorney discipline: when public discipline is sought based on an out-of-state conviction under Judiciary Law § 90(4) and 22 NYCRR 1240.12, the rules do not require a determination that the foreign offense (or the underlying conduct) would also constitute a New York crime. The Court’s disaffirmance of the Special Referee’s comparability determination reinforces that the disciplinary inquiry centers on the conviction and the appropriate sanction, assessed under the totality of the circumstances. Applying that framework, the Court imposed a six-month suspension, reflecting both the seriousness of the incident and the respondent’s disciplinary history, while acknowledging but not elevating mitigation to a dispositive level.