Proportionality over Parity: The First Department’s Re-Calibration of Reciprocal Discipline in Matter of Fenstermaker

Introduction

In Matter of Fenstermaker, 2025 NY Slip Op 02878, the Appellate Division, First Department, confronted the perennial tension between comity to a sister jurisdiction’s disciplinary determination and New York’s own proportional sanctioning philosophy. Scott Lloyd Fenstermaker, a New York attorney later admitted in Maine, was suspended by the Supreme Judicial Court of Maine for three years after findings of wide-ranging professional misconduct. Invoking the doctrine of reciprocal discipline, New York’s Attorney Grievance Committee (AGC) sought to mirror the three-year suspension. The First Department agreed that discipline was warranted but declined to rubber-stamp Maine’s sanction, instead imposing a one-year suspension—thereby clarifying that proportionality to New York precedent, not perfect parity with the foreign sanction, is the governing norm.

Summary of the Judgment

• The court granted the AGC’s motion for reciprocal discipline under Judiciary Law § 90(2) and 22 NYCRR § 1240.13.
• All possible defenses to reciprocal discipline (due-process failure, infirmity of proof, or non-misconduct in New York) were rejected.
• Nevertheless, the court held that Maine’s three-year suspension “does not reasonably align” with New York precedent for comparable conduct.
• Weighing aggravating and mitigating factors—most notably Fenstermaker’s previously unblemished 32-year New York record—the court imposed a one-year suspension, effective 30 days after the order.

Analysis

A. Precedents Cited and Their Influence

The opinion canvasses a line of First Department cases to benchmark an appropriate sanction:

• Matter of Milara, 194 AD3d 108 (2021) – re-states the three available defenses under § 1240.13(b) and the general rule of deference to the originating jurisdiction.
• Matter of Tabacco, 171 AD3d 163 (2019) & Matter of Blumenthal, 165 AD3d 85 (2018) – confirm deference but acknowledge rare departures when discipline is “substantially out of line.”
• “Departure” decisions –
  • Matter of Karambelas, 203 AD3d 75 (2022)
  • Matter of McHallam, 160 AD3d 89 (2018)
  These cases provided the blueprint for modifying sanctions where New York precedent dictates a lesser penalty.
• Comparability matrix – the court assembled a series of misconduct cases (Levy 2024; Dahiya 2024; Sofer 2023; Steinberg 2018; Giorgini 2018; Linn 2018) showing suspensions between three months and one year for analogous patterns: frivolous litigation, courtroom intemperance, and harassment of opposing counsel.
• AGC’s outlier analogy – Matter of Savitt, 170 AD3d 24 (2019) featured more egregious conduct (four civil suits, $46k sanctions, refusal to pay) and thus did not persuade the court to adopt a three-year term.

Collectively, these authorities empowered the panel to invoke the “rare departure” exception and tailor discipline to local norms.

B. Legal Reasoning

1. Threshold Reciprocity Analysis.
   Under 22 NYCRR § 1240.13(b), the court screened for: (i) due-process deficiencies; (ii) infirmity of proof; (iii) conduct not constituting New York misconduct. Finding none, the panel proceeded directly to sanction.
2. Principle of Proportionality.
   The court treated Maine’s sanction as persuasive but not binding. The guiding question: “Does the foreign sanction reasonably align with New York precedent for similar misconduct?”
3. Aggravating / Mitigating Balance.
   Aggravators – pattern of misconduct, lack of remorse, confrontations with prosecutors.
   Mitigators – 32 years of unblemished New York practice, no prior discipline, some over-charging concerns in Maine.
   This balance supported a mid-range sanction: one year.
4. Comity vs. Local Policy.
   The opinion underscores that comity yields where it would “subvert the consistent application of New York disciplinary norms.” The case thus clarifies that New York’s regulatory interest—in predictability and proportionality—prevails.

C. Potential Impact

• Benchmark Precedent. The decision will be cited whenever parties argue that a foreign discipline is disproportionately harsh or lenient compared with New York’s scale.
• Guidance to the AGC. The Attorney Grievance Committees are signaled to perform a deeper comparative analysis before recommending parity sanctions.
• Practitioner Awareness. Attorneys licensed in multiple jurisdictions now have clearer notice that New York will scrutinize, not merely copy, a sister state’s sanction.
• Judicial Economy. By articulating the proportionality test, the court may reduce future briefing on whether New York should “blindly follow” foreign suspensions.

Complex Concepts Simplified

• Reciprocal Discipline. A streamlined procedure allowing New York to discipline lawyers already sanctioned elsewhere without relitigating the entire record, subject to basic fairness safeguards.
• Nunc pro tunc. Latin for “now for then.” It makes a later order effective as of an earlier date—in Maine, Fenstermaker’s suspension was dated back to his interim suspension.
• Interim Suspension. Temporary suspension imposed during an investigation when an attorney is deemed an imminent threat.
• Frivolous Litigation (Rule 3.1). Starting or continuing a proceeding without a good-faith basis in fact or law.
• Conflict of Interest (Rule 1.7). Representation materially limited by the lawyer’s own interests or duties to another client.
• N.Y. Rules 8.4(d)/(h). Prohibit conduct prejudicial to the administration of justice and other misconduct reflecting adversely on fitness to practice.

Conclusion

The First Department’s decision in Matter of Fenstermaker crafts a fine-grained rule: in reciprocal discipline, proportionality to New York’s disciplinary landscape outweighs mechanical mirroring of sister-state sanctions. By reducing a foreign three-year suspension to one year, the court reaffirmed (1) its willingness to honor comity, (2) its independent duty to maintain consistent local standards, and (3) the principle that penalties must fit both the misconduct and the jurisdiction’s historical range. Future respondents—and the Attorney Grievance Committees—must therefore present (or rebut) a careful comparative survey of New York precedents when negotiating reciprocal sanctions.