The Salomon Upward-Departure Doctrine in Reciprocal Attorney Discipline

Introduction

Matter of Salomon (2025 NY Slip Op 03255) concerns reciprocal attorney-discipline proceedings brought in New York after the United States Executive Office for Immigration Review (EOIR) twice suspended attorney Ronald S. Salomon for misconduct before Immigration Courts. Although New York ordinarily “gives significant weight” to the sanction imposed by the foreign tribunal, the Appellate Division, First Department imposed a harsher penalty—an 18-month suspension and mandatory anger-management counseling. The Judgment crystallises when and how New York courts may increase a sanction issued elsewhere, forging what this commentary dubs the “Salomon Upward-Departure Doctrine.”

Parties

Petitioner: Attorney Grievance Committee (AGC) for the First Judicial Department.
Respondent: Ronald S. Salomon, immigration attorney admitted in 1991.

Key Issues

Whether reciprocal discipline is warranted under 22 NYCRR §1240.13.
Whether the New York court should depart upward from EOIR’s total 12-month suspension (two six-month terms) and impose a harsher sanction.
Whether the sanction should be applied nunc pro tunc and what ancillary conditions (anger-management) are appropriate.

Summary of the Judgment

The Court granted the AGC’s motion, finding that none of the three recognised defences to reciprocal discipline applied. It imposed:

An 18-month suspension from the practice of law, effective 30 days from the order.
A mandatory one-year anger-management programme through the New York State Bar Association’s Lawyer Assistance Program.
Rejection of respondent’s cross-motion seeking a 12-month suspension retroactive to the earlier federal start date.

Salomon is commanded to cease all legal practice during the suspension and comply with the rules governing suspended attorneys. The Court’s principal rationale was Salomon’s extensive disciplinary history, his contemptuous behaviour toward court staff, and his unauthorised practice of law while already suspended—factors that make a mere equal-to-EOIR sanction inadequate.

Analysis

Precedents Cited

The Judgment synthesises a series of earlier decisions:

Matter of Milara, 194 AD3d 108 (2021) – restates the three defences available in reciprocal discipline (notice/opportunity, infirmity of proof, non-misconduct in NY).
Matter of Blumenthal, 165 AD3d 85 (2018) and Matter of Jaffe, 78 AD3d 152 (2010) – articulates the general rule of deference to the foreign tribunal’s sanction.
Matter of Tustaniwsky, 204 AD3d 162 (2022) – recognises that departures are “rare,” foreshadowing the exceptional treatment in Salomon.
Matter of Sondel, 111 AD3d 168 (2013); Hayes, 7 AD3d 108 (2004); Wisehart, 281 AD2d 23 (2001) – provide sanction ranges for contemptuous or contumelious behaviour.
Matter of Castro, 184 AD3d 272 (2020); Gonchar, 166 AD3d 91 (2018); Rosabianca, 131 AD3d 215 (2015) – establish that unauthorised practice while suspended often draws lengthy suspensions or disbarment.
Retroactivity decisions—Peters, 127 AD3d 103 (2015); Filosa, 112 AD3d 162 (2013); Gilly, 110 AD3d 164 (2013)—clarify when nunc pro tunc relief is available.

Collectively these cases allowed the Court to calibrate the sanction, justifying a harsher penalty through analogy to prior outcomes involving contempt and unauthorised practice.

Legal Reasoning

Threshold eligibility for reciprocal discipline. Salomon conceded discipline was proper. The Court nonetheless walked through each statutory defence and found none applicable, thereby reinforcing procedural robustness.
Doctrine of Upward Departure. While Blumenthal emphasises deference, the Court declared this case a “rare instance” warranting departure because:
- Salomon’s significant disciplinary history—seven prior sanctions, including a 2016 admonition for virtually identical conduct.
- Recidivism shortly after prior discipline, indicating deterrence failure.
- Dual misconduct: contempt toward staff and practising while suspended, the latter being independently grave.
- Ongoing problematic behaviour toward the AGC’s counsel during the current proceedings.
By aggregating these aggravators, the Court concluded a 50 % increase over EOIR’s combined 12-month suspensions was necessary.
Rejection of Retroactivity (nunc pro tunc). The Court distinguished cases where a respondent had ceased practice voluntarily or where procedural delay existed. Because Salomon kept practising and there was no delay, retroactive relief was denied.
Ancillary Conditions. Recognising anger as a root cause, the Court used its inherent power to order a rehabilitative condition (one-year anger-management programme) aligning with Salomon’s own acknowledgement of the issue.

Impact of the Judgment

1. New Precedent—The Salomon Upward-Departure Doctrine
The decision furnishes explicit, fact-driven criteria for overriding the usual deference in reciprocal discipline. Future panels now have a blueprint: extensive prior discipline + recidivist misconduct + unauthorised practice + fresh aggravating conduct = grounds for enhanced sanctions.

2. Immigration Bar Regulation
Because immigration practice straddles federal and state licensure, the ruling warns practitioners that suspension by EOIR cannot be circumvented through state admissions; indeed, state punishment may be harsher.

3. Emphasis on Professional Civility
The Court re-affirms that verbal abuse of court staff is “an imminent threat to the administration of justice.” Expect stricter scrutiny of courtroom decorum going forward.

4. Expansion of Remedial Conditions
The anger-management mandate shows willingness to intertwine mental-health interventions with discipline—an approach likely to recur in cases implicating behavioural issues.

Complex Concepts Simplified

Reciprocal Discipline: When one jurisdiction (here, New York) imposes discipline on a lawyer because another jurisdiction (EOIR) already has.
22 NYCRR §1240.13: New York rule governing reciprocal discipline, listing the three possible defences (lack of notice, infirmity of proof, non-misconduct).
Contumelious Conduct: Behaviour that is insolent, disrespectful, or contemptuous toward a court or its officers.
Unauthorised Practice of Law (UPL): Providing legal services while not entitled—here, practising during a suspension.
Nunc Pro Tunc: Latin for “now for then.” A court order declaring that something is to take effect from an earlier date.
Anger-Management Programme: A rehabilitative course, typically involving counselling or therapy, aimed at controlling aggressive or abusive behaviour.

Conclusion

Matter of Salomon breaks new ground by articulating a principled basis for heightening penalties in reciprocal attorney-discipline cases. It clarifies that where an attorney (1) has an extensive prior record, (2) repeats the same misconduct, (3) practises while suspended, and (4) exhibits fresh aggravating behaviour, New York will not hesitate to depart upward from the foreign sanction. The decision underscores the judiciary’s intolerance for incivility and the unauthorised practice of law, especially in the sensitive field of immigration representation. Practitioners should view Salomon as a cautionary tale—and as a definitive statement that reciprocal discipline in New York can be more than a rubber stamp; it can be an escalator.