Totality-of-Circumstances Standard and Respondent’s Burden at 22 NYCRR 1240.12(c)(3)(iii) Hearings: Six-Month Suspension for Repeated DWI Convictions, Probation Violations, and Failure to Report (Matter of Thwaites)

Totality-of-Circumstances Standard and Respondent’s Burden at 22 NYCRR 1240.12(c)(3)(iii) Hearings: Six-Month Suspension for Repeated DWI Convictions, Probation Violations, and Failure to Report (Matter of Thwaites)

Introduction

In Matter of Thwaites (2025 NY Slip Op 04726), the Appellate Division, Second Department, imposed a six-month suspension on attorney Benjamin E. Thwaites (admitted as Benjamin Emmanuel Thwaites) based on two misdemeanor drunk-driving convictions, a series of probation violations, and a failure to comply with attorney reporting obligations. Proceeding under the criminal-conviction framework of Part 1240 of the Rules for Attorney Disciplinary Matters, the Court reaffirmed two core principles:

  • At a show-cause hearing convened under 22 NYCRR 1240.12(c)(3)(iii), the burden is on the attorney to demonstrate why final discipline should not issue.
  • Sanction selection will be driven by the totality of the circumstances—here, repeated alcohol-related offenses, probation noncompliance, and prior discipline outweighed character mitigation and warranted a period of suspension.

The petitioner was the Grievance Committee for the Ninth Judicial District; the respondent was Mr. Thwaites. The Court confirmed a Special Referee’s report and ordered a six-month suspension, with detailed reinstatement prerequisites under Part 1240.

Summary of the Judgment

The Court’s principal holdings and orders are as follows:

  • The Grievance Committee’s motion to confirm the Special Referee’s report is granted.
  • Respondent is suspended from the practice of law for six months, commencing September 19, 2025, and continuing until further order of the Court.
  • Respondent may not apply for reinstatement earlier than February 19, 2026, and any application must establish compliance with:
    • 22 NYCRR 1240.15 (rules for disbarred or suspended attorneys), and
    • 22 NYCRR 1240.16 (reinstatement procedures), including proof that respondent refrained from practice and otherwise properly conducted himself during suspension.
  • Respondent must desist from practicing law in any capacity, appearing as counsel, giving legal advice, or holding himself out as an attorney during suspension; any secure pass issued by OCA must be returned, with certification pursuant to 22 NYCRR 1240.15(f).

Background and Procedural Posture

Key Facts and Timeline

  • December 19, 2014 (Bronx County):
    • Arrest for aggravated DWI (VTL § 1192[2-a][a]), and related DWI counts; breathalyzer BAC 0.265%.
    • May 2, 2017: Plea of guilty to aggravated DWI in satisfaction of all charges.
    • October 6, 2017: Six days’ imprisonment, three years’ probation, $1,000 fine plus $395 surcharge, one-year license revocation.
  • April 17, 2017 (Mount Vernon; while Bronx matter was pending):
    • Arrest for DWI (VTL § 1192[3]), driving in violation of a restricted license (VTL § 530[6] as stated), and refusal to submit to a chemical test (VTL § 1194[1]).
    • July 13, 2017: Plea of guilty to DWI in satisfaction of those charges.
    • November 9, 2017: Three years’ probation, $500 fine plus $395 surcharge, one-year license revocation.
  • 2019–2021 (Probation Noncompliance):
    • April–August 2019: Four probation violation reports alleging missed appointments, failure to test, discharge from treatment, and alcohol use; bench warrant issued July 15, 2019.
    • August 15, 2019: Respondent admits violation; referred to a DWI monitoring program. When fitted for a SCRAM bracelet, BAC reportedly 0.135%; probation later restored and extended to May 21, 2021.
    • January 26, 2021: Respondent admits violation by traveling to Jamaica contrary to court denials; resentenced to a one-year conditional discharge and ordered to complete substance abuse treatment.
  • Reporting Obligations:
    • Respondent failed to timely report his convictions as required by Judiciary Law § 90(4)(c) and 22 NYCRR 1240.12(a).
  • Disciplinary Proceedings:
    • April 25, 2023: Order to show cause issued under 22 NYCRR 1240.12(c)(3)(iii) directing a hearing before a Special Referee on why final discipline should not be imposed based on the 2017 convictions.
    • July 6 and September 13, 2023: Hearings before the Hon. Arthur J. Cooperman, Special Referee.
    • December 12, 2023: Special Referee reports respondent failed to demonstrate why final discipline should not issue.
    • March 28, 2024: Grievance Committee moves to confirm; respondent does not oppose.

Detailed Analysis

1) Precedents and Authorities Cited

The opinion does not cite prior case law decisions; it relies on the statutory and regulatory framework that governs attorney discipline arising from criminal convictions:

  • Judiciary Law § 90(4)(c): Requires attorneys to report convictions; failure to do so is itself misconduct.
  • 22 NYCRR 1240.12(a): Implements the reporting duty (notice within 30 days of conviction, with certified documents).
  • 22 NYCRR 1240.12(c)(3)(iii): Provides for a show-cause hearing in criminal-conviction matters not treated as “serious crimes” for interim suspension, placing the burden on the respondent to demonstrate why final discipline should not be imposed.
  • 22 NYCRR 1240.15: Sets out compliance obligations for suspended or disbarred attorneys, including notices to clients, adversaries, and tribunals, withdrawal from matters, and return of secure passes.
  • 22 NYCRR 1240.16: Governs reinstatement, including proof of compliance and fitness to resume practice.
  • Vehicle and Traffic Law provisions underlying the convictions and ancillary conduct:
    • VTL § 1192(2-a)(a): Aggravated DWI (typically BAC of 0.18% or higher) – an unclassified misdemeanor in this context.
    • VTL § 1192(3): Common-law DWI (driving in an intoxicated condition), also an unclassified misdemeanor.
    • VTL § 1194(1): Refusal to submit to a chemical test (administrative and evidentiary consequences).
    • VTL § 530(6): Cited by the opinion as “driving in violation of a restricted license.”

Although no prior judicial decisions are expressly cited, the Court’s approach is consistent with the long-standing disciplinary principle that criminal conduct reflecting adversely on a lawyer’s fitness—particularly when repeated and accompanied by noncompliance with court orders—can warrant public discipline up to and including suspension, even where the underlying convictions are misdemeanors.

2) The Court’s Legal Reasoning

The Court’s reasoning proceeds along interlocking axes of procedure, proof, and proportionality:

  • Procedural posture and burden:
    • Under 22 NYCRR 1240.12(c)(3)(iii), the Court convened a show-cause hearing before a Special Referee directed at final discipline based on the two 2017 convictions.
    • The respondent bears the burden of demonstrating why a final order of censure, suspension, or disbarment should not issue. The Special Referee concluded, and the Court agreed, that the respondent did not carry that burden.
    • Respondent’s failure to oppose the motion to confirm the Special Referee’s report further underscored the absence of countervailing grounds or developed mitigation.
  • Proof and fact pattern:
    • Two alcohol-related convictions within months of each other—one aggravated DWI with a very high BAC (0.265%) and a second DWI while the first case was still pending—demonstrated a pattern, not an isolated lapse.
    • Subsequent probation noncompliance (missed appointments, failure to test, discharge from treatment, continuing alcohol use reflected in SCRAM intake, and unauthorized travel) showed a failure to abide by court-imposed obligations.
    • Respondent also failed to meet mandatory reporting duties under Judiciary Law § 90(4)(c) and 22 NYCRR 1240.12(a).
  • Aggravation and mitigation analysis:
    • Aggravating factors included:
      • Multiple convictions, including aggravated DWI.
      • Commission of the second offense while the first was pending.
      • Repeated probation violations and bench warrant activity.
      • Failure to timely report convictions.
      • Prior disciplinary history (letter of caution, public censure, letter of advisement, and an admonition personally delivered).
    • Mitigating material consisted of character evidence and community service. The Court expressly acknowledged these submissions but concluded they did not outweigh the aggravation.
  • Sanction selection and purpose:
    • Invoking a totality-of-the-circumstances assessment, the Court selected a six-month suspension to protect the public, preserve the integrity of the bar, and deter similar misconduct.
    • Conditions for reinstatement reflect a focus on compliance (nonpractice, adherence to Part 1240, and proof of proper conduct during suspension).

3) What This Decision Clarifies or Emphasizes

  • Respondent’s burden is real: In 1240.12(c)(3)(iii) show-cause proceedings predicated on misdemeanor convictions, the attorney must present persuasive mitigation or other reasons to avoid discipline; a bare record or no opposition will not forestall sanction.
  • Totality matters: While a single misdemeanor DWI may sometimes result in lesser discipline, multiple alcohol-related convictions, coupled with probation violations and prior disciplinary history, will push the sanction toward suspension.
  • Reporting is not optional: Failure to comply with Judiciary Law § 90(4)(c) and 22 NYCRR 1240.12(a) is itself misconduct and aggravates sanction exposure.

4) Anticipated Impact

This opinion will likely exert the following influences on future cases and practice:

  • Bar discipline for DWI will continue to be calibrated to patterns and compliance: Repeated incidents, high BACs, refusal to test, and probation noncompliance will weigh heavily toward suspension.
  • Respondents will need robust mitigation to avoid suspension in multi-incident alcohol cases: Documentation of treatment engagement, sustained sobriety, compliance records, monitoring results, and credible testimonials carry more weight than generalized assertions of good character.
  • Grievance Committees may use 1240.12(c)(3)(iii) more readily where multiple misdemeanor convictions are involved, even absent “serious crime” designation, because the hearing structure places the onus on the attorney to justify leniency.
  • Practitioners should treat reporting obligations as time-sensitive compliance events; late or absent reporting can be outcome-determinative when combined with other aggravation.

Complex Concepts Simplified

  • Aggravated DWI (VTL § 1192[2-a][a]): A form of DWI typically involving a high BAC threshold (commonly 0.18% or higher), treated here as an unclassified misdemeanor. A very high BAC (0.265% in this case) is an aggravating fact in sanctioning.
  • Common-law DWI (VTL § 1192[3]): Driving while intoxicated based on observed impairment; no breath test is required for a conviction.
  • Refusal to submit to a chemical test (VTL § 1194[1]): Refusal can result in license consequences and may serve as aggravation in attorney discipline due to noncooperation with lawful testing protocols.
  • Show-cause hearing (22 NYCRR 1240.12[c][3][iii]): A post-conviction disciplinary hearing in which the attorney must demonstrate why discipline should not be imposed. It differs from “serious crime” procedures that can trigger interim suspension.
  • Judiciary Law § 90(4)(c) and 22 NYCRR 1240.12(a): An attorney must notify the Appellate Division and the appropriate Grievance Committee within 30 days of any criminal conviction and provide certified documentation.
  • SCRAM bracelet: A monitoring device that tests for alcohol through transdermal readings; positive alcohol at fitting suggests recent ingestion.
  • Conditional discharge: A sentence under which no active supervision occurs if specified conditions are met for a set period; violations can result in resentencing.
  • Spectrum of discipline:
    • Letters of caution/advisement and admonitions are nonpublic or lesser forms of discipline intended to correct behavior without public sanction.
    • Public censure is a published reprimand.
    • Suspension removes the right to practice for a defined period, subject to compliance and reinstatement procedures.
    • Disbarment terminates the attorney’s license, with stringent requirements for any future readmission.
  • Reinstatement (22 NYCRR 1240.16): Requires proof of full compliance with suspension rules, cessation of practice, and affirmative evidence of fitness; the burden rests with the suspended attorney.

Practical Guidance Drawn from the Decision

  • Report promptly: File the required conviction notices and certified documents within 30 days to avoid compounding misconduct.
  • Demonstrate rehabilitation: In alcohol-related matters, provide treatment records, program completion certificates, monitoring data, and sustained sobriety evidence—ideally over a significant period.
  • Show compliance culture: Document adherence to probation, court orders, and all disciplinary directives; unexplained gaps or missed appointments are damaging.
  • Engage the process: Appear, present, and oppose when appropriate. Non-opposition to a motion to confirm a Special Referee’s report cedes the field.
  • Contextualize character evidence: Pair community service and testimonials with concrete rehabilitative steps and insight into the misconduct.

Conclusion

Matter of Thwaites underscores that misdemeanor drunk-driving convictions can warrant significant public discipline when repeated and aggravated by noncompliance with probation and reporting duties. The decision clarifies two operational pillars in criminal-conviction disciplinary cases: the respondent’s burden at a 22 NYCRR 1240.12(c)(3)(iii) show-cause hearing and the Court’s totality-of-the-circumstances approach to sanctioning. Against a background of multiple alcohol-related offenses, high BAC, probation violations, prior discipline, and failure to report, character evidence alone did not avert suspension. The six-month suspension, with stringent reinstatement conditions, reflects the protective, not punitive, aims of attorney discipline: safeguarding the public, preserving the reputation of the bar, and deterring future misconduct. For practitioners, the case is a clear reminder to report, comply, rehabilitate, and fully engage with the disciplinary process to present meaningful mitigation.

Case Details

Year: 2025
Court: Appellate Division of the Supreme Court, New York

Judge(s)

Per Curiam

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