Pattern of Non‑Cooperation with the Attorney Grievance Committee and Persistent Registration Delinquency Warrant Interim Suspension under 22 NYCRR 1240.9(a)(3)

Introduction

In this attorney disciplinary matter, the First Department granted the Attorney Grievance Committee’s renewed motion to immediately suspend Michael J. Biniakewitz from the practice of law pending further order. The Court’s decision underscores two recurring principles in New York’s attorney discipline jurisprudence: (1) a sustained failure to comply with the Attorney Grievance Committee’s lawful investigative demands—especially after warnings and partial, piecemeal cooperation—may be deemed “conduct immediately threatening the public interest” warranting interim suspension under 22 NYCRR 1240.9(a)(3); and (2) persistent delinquency in attorney registration under Judiciary Law § 468‑a can independently reinforce the necessity of interim relief.

The case arises from nine underlying client complaints and the respondent’s prolonged delays and subsequent non‑compliance with follow‑up document requests, despite the Committee’s accommodations and the Court’s prior willingness to allow a withdrawn suspension motion when initial cooperation belatedly occurred. The First Department also acknowledged that service of the renewed motion was effectuated through substituted means (including email and text) previously authorized by court order, and that the motion was unopposed.

Summary of the Opinion

Procedural and Factual Background

• Admission and registration: Respondent was admitted in 2003 (Second Department) and last registered in the First Department.
• Initial motion (January 2025): The AGC moved for interim suspension citing failure to answer nine complaints and delinquent biennial registration (2023–2024). After respondent began cooperating and answered the complaints, the AGC withdrew the motion; the Court deemed it withdrawn on May 2, 2025.
• Renewed motion (July 24, 2025): The AGC asserted respondent’s failure to comply with subsequent demands for documents/information regarding five complaints and his continued registration delinquency. Service was made by mail, email, and text pursuant to a prior court order authorizing substituted service; respondent filed no opposition.
• Document requests and deadlines:
  • May 29, 2025: AGC requested specified materials by July 7 (or an explanation by June 23 if he could not comply).
  • July 8, 2025: AGC extended to July 14, warning of renewed suspension motion.
  • July 14, 2025: Respondent emailed that an IT professional (I.M.) would retrieve electronically stored data; requested until July 28; said he had contacted an assistant (L.M.) to determine her involvement. When Staff Counsel asked for documentation confirming those steps, respondent did not provide it, nor did he produce the requested materials.

Governing Standard

22 NYCRR 1240.9(a) provides for an interim suspension “upon a finding by the Court that the respondent has engaged in conduct immediately threatening the public interest. Such a finding may be based upon: (3) the respondent’s failure to comply with a lawful demand of a Committee in an investigation under these Rules.”

Judiciary Law § 468‑a requires biennial attorney registration and payment of the prescribed fee; continued delinquency can support interim suspension when coupled with other non‑compliance.

The Court’s Holding

The First Department found that the “record in toto evinces a pattern of non‑cooperation.” Respondent ignored multiple requests to answer complaints for about two years and only answered after being served with the first suspension motion. After that motion was withdrawn, he again failed to comply—this time with demands for additional documents and information. Given the Committee’s explicit warnings and deadlines, the lack of responsive production, and respondent’s failure to substantiate claimed obstacles (e.g., IT retrieval), the Court held that 22 NYCRR 1240.9(a)(3) was satisfied.

The Court also recognized respondent’s ongoing failure to cure his registration delinquency as an “additional basis” for immediate suspension (citing Matter of McCrea, 211 AD3d 167 [1st Dept 2022]; Matter of Vinnitsky, 204 AD3d 134 [1st Dept 2022]). The motion was granted; respondent is suspended immediately and must comply with 22 NYCRR 1240.15 and return any OCA secure pass.

Analysis

Precedents Cited and Their Influence

The Court’s reasoning is anchored in a line of First Department cases holding that partial or initial cooperation does not insulate an attorney from interim suspension when he or she later fails to comply with additional, lawful investigative demands:

• Matter of Espinoza, 200 AD3d 21 (1st Dept 2021): Interim suspension imposed where the attorney appeared for deposition but failed to produce supplemental documents and information as directed by judicial subpoena. The case stands for the proposition that compliance with some aspects of an investigation does not excuse ignoring core documentary demands.
• Matter of Fox, 197 AD3d 36 (1st Dept 2021): The attorney produced some bookkeeping records and sat for a deposition but then failed to produce additional records sought by subpoena and repeatedly requested by the AGC. The Court deemed the failure to cooperate an immediate threat to the public interest.
• Matter of Miller, 170 AD3d 1 (1st Dept 2019): The respondent appeared for deposition yet failed to provide requested bank records; the Court held that such non‑compliance warranted interim suspension.
• Matter of Moreno, 149 AD3d 65 (1st Dept 2017): The respondent participated in a deposition and provided some documents but did not furnish tax returns as lawfully demanded; interim suspension followed.
• Matter of McCrea, 211 AD3d 167 (1st Dept 2022), and Matter of Vinnitsky, 204 AD3d 134 (1st Dept 2022): Both decisions confirm that delinquent registration under Judiciary Law § 468‑a can serve as an additional, reinforcing ground for interim suspension alongside failure to cooperate with the AGC.

Collectively, these cases communicate a consistent rule: the quality of cooperation matters. Partial steps—like appearing for a deposition or producing some records—do not cure the failure to provide the specific documents and information the Committee lawfully demands. Where such failures persist, especially after explicit warnings, the First Department has repeatedly found an immediate threat to the public interest justifying interim suspension.

Legal Reasoning Applied

• Pattern of non‑cooperation: The Court emphasized the respondent’s history—two years of failing to answer complaints, followed by a renewed failure to produce requested documents after the initial motion was withdrawn. This pattern, not a single missed deadline, animated the Court’s conclusion that public protection required immediate action.
• Failure to meet clear, extended deadlines: The AGC built a record of reasonable demands, precise deadlines, and explicit warnings. After respondent asked for more time citing data retrieval needs, Staff Counsel reasonably requested documentation (e.g., proof of retaining the IT vendor and contacting the assistant). No corroboration or production followed.
• Public interest assessment: By rule, failure to comply with a lawful investigative demand may itself demonstrate conduct “immediately threatening the public interest.” The Court treated respondent’s sustained non‑compliance as undermining the Committee’s ability to investigate alleged misconduct and protect clients, warranting interim suspension.
• Registration delinquency as an additional ground: Respondent’s ongoing § 468‑a delinquency—after indicating he would cure it—reinforced the need for interim action, consistent with McCrea and Vinnitsky.
• Procedural regularity: The Court noted service by mail, email, and text pursuant to an earlier substituted‑service order (Judiciary Law § 90[6]) and the absence of a response, indicating both notice and an opportunity to be heard were afforded.

Impact and Forward‑Looking Implications

• Partial cooperation is not a safe harbor: Attorneys who answer complaints or appear for depositions must still furnish all lawfully demanded documents. Failure to complete production—particularly after explicit warnings—can independently trigger interim suspension.
• Renewed motions remain available: An earlier decision to withdraw an interim suspension motion does not preclude the AGC from renewing it if non‑compliance recurs. This decision validates a pragmatic, stepwise enforcement strategy.
• Registration delinquency matters: Persistent failure to register and pay biennial fees provides an “additional basis” for interim suspension. The First Department will aggregate such administrative non‑compliance with investigative non‑cooperation to justify immediate relief.
• Substituted service in disciplinary proceedings: Where authorized by court order, service via email and text, alongside conventional mail, may suffice. Attorneys must keep their contact information current with the Office of Court Administration; failure to do so will not shield them from notice.
• Practice management expectations for solos and small firms: Invoking IT hurdles or dispersed electronic storage does not excuse missed deadlines. Lawyers should maintain retrievable client files and be prepared to show, with documentation, steps taken to gather responsive materials.
• Protective—not punitive—orientation: Interim suspension under 22 NYCRR 1240.9 is designed to protect the public and the integrity of the profession pending further proceedings; it does not foreclose later modification upon demonstrated compliance under the Rules.

Complex Concepts Simplified

• Attorney Grievance Committee (AGC): The AGC investigates complaints of attorney misconduct. It can demand documents, take testimony, and, when necessary, seek interim suspension to protect the public.
• Lawful investigative demand: A request or subpoena issued by the AGC pursuant to the Rules for Attorney Disciplinary Matters (22 NYCRR part 1240). Failure to comply may, by itself, justify interim suspension under 22 NYCRR 1240.9(a)(3).
• Interim suspension: A temporary suspension imposed before final adjudication, based on a threshold finding that the attorney’s conduct immediately threatens the public interest. It is protective and can be revisited by the Court.
• Judiciary Law § 468‑a (biennial registration): Requires attorneys to register and pay a fee every two years. Persistent delinquency, especially when paired with other non‑compliance, can support interim suspension.
• Substituted service (Judiciary Law § 90[6]): In disciplinary matters, the Court can authorize alternative means of service (e.g., email, text) when appropriate, ensuring the respondent receives notice.
• Obligations during suspension (22 NYCRR 1240.15): Suspended attorneys must cease practicing, avoid holding themselves out as attorneys, notify clients and tribunals as required, and comply with other specified conditions (e.g., returning any OCA secure pass).

Practical Takeaways for Practitioners

• Respond promptly and completely to AGC demands; if you need more time, request it before the deadline and substantiate the need with documentation.
• Keep a centralized, retrievable client file system. If using multiple electronic repositories, maintain an index and be able to certify search efforts and results.
• Proactively cure any registration delinquency. Evidence of correction (payment confirmation, updated registration) should be promptly provided to the AGC.
• Maintain current contact information with OCA. Expect that, if authorized by court order, service may occur via electronic means in addition to postal mail.
• Create a paper trail: memorialize communications with IT vendors or assistants and be prepared to produce engagement confirmations and retrieval timelines if asked.

Conclusion

Matter of Biniakewitz reinforces a settled but critical principle in New York attorney discipline: a pattern of non‑cooperation with the AGC’s lawful demands—despite warnings and—even after partial compliance—can constitute conduct “immediately threatening the public interest,” justifying interim suspension under 22 NYCRR 1240.9(a)(3). Persistent registration delinquency under Judiciary Law § 468‑a strengthens the case for immediate relief.

The decision illustrates the First Department’s protective posture: it will grant interim suspension where an attorney’s sustained non‑compliance impedes investigation and risks harm to clients and the public. For practitioners, the message is clear—timely, documented, and complete cooperation with disciplinary authorities, coupled with scrupulous attention to administrative obligations, is not optional; it is integral to the privilege of practicing law.

Note: The opinion is published by the New York State Law Reporting Bureau pursuant to Judiciary Law § 431 and is uncorrected, subject to revision before publication in the Official Reports.