Volitional Misrepresentation to an Out‑of‑State Court Warrants One‑Year Suspension: The Second Department’s Benchmark in Matter of Yu

This commentary analyzes Matter of Yu, 2025 NY Slip Op 04487 (App Div, 2d Dept, July 30, 2025), a per curiam decision imposing a one‑year suspension on a New York attorney who falsely told a Virginia judge that he was licensed in Virginia and then tried a case there. The decision affirms core professional norms—candor to tribunals, respect for jurisdictional boundaries, and the integrity of court processes—and sets a clear sanction benchmark for volitional dishonesty in open court, even when the misconduct occurs outside New York.

Introduction

In Matter of Yu, the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts brought a single charge of professional misconduct against Lionel Jay Yu, admitted to the New York bar in 2020. The charge stemmed from a 2021 incident in the Virginia General District Court (Augusta County), where Yu twice represented to Judge Rupen R. Shah that he was licensed in Virginia, claimed to have an office there, and proceeded to cross‑examine a police officer in a traffic case for a friend. After the hearing concluded, the judge discovered Yu was not Virginia‑licensed, found him in summary contempt, and later, Virginia authorities pursued an unauthorized practice charge that Yu resolved with a nolo contendere plea conditioned on ethics CLE and self‑reporting to New York’s disciplinary authorities.

The New York proceedings were conducted under 22 NYCRR 1240.8. A Special Referee sustained the sole charge, and the Appellate Division, Second Department, granted the Grievance Committee’s motion to confirm and imposed a one‑year suspension. The decision grapples with dishonesty to a court, prejudice to the administration of justice (Rules of Professional Conduct 8.4(c) and (d)), and cross‑jurisdictional misconduct.

Key issues:

Whether misrepresenting licensure status to an out‑of‑state court and then practicing there violates Rule 8.4(c) and (d).
How New York calibrates sanction for volitional dishonesty in open court when the events occur outside New York.
The weight given to mitigation (cooperation; mental health treatment) versus aggravation (repeated lies; contempt; unauthorized practice; delayed self‑report).

Summary of the Judgment

The Second Department:

Confirmed the Special Referee’s finding sustaining the single charge that Yu engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation and conduct prejudicial to the administration of justice, in violation of 22 NYCRR 1200.0, Rule 8.4(c) and (d).
Emphasized Yu’s “volitional” misconduct and that he “blatantly lied in open court repeatedly” about his Virginia licensure.
Imposed a one‑year suspension, commencing August 29, 2025.
Set reinstatement conditions under 22 NYCRR 1240.16, including proof of non‑practice, compliance with 22 NYCRR 1240.15 (duties of suspended attorneys), CLE compliance (22 NYCRR 691.11[a]), and overall proper conduct.
Ordered compliance with Judiciary Law § 90 restrictions, including not holding himself out as an attorney, not appearing before tribunals, and returning any secure OCA pass.

Case Timeline

January 15, 2020: Yu admitted to NY bar.
March 4, 2021: In Virginia court, Yu twice asserts he is Virginia‑licensed; tries a case; later the same day, the judge discovers otherwise and issues a summary contempt order ($250 fine; 10‑day suspended jail sentence).
June 2021: Virginia issues arrest warrant for unauthorized practice (Va. Code Ann. § 54.1‑3904).
January 7, 2022: Nolo contendere plea in Virginia to unauthorized practice, with conditions: 50 hours ethics CLE; report to a NY Grievance Committee; 12 months of good behavior; return to court January 5, 2023.
December 2022: Yu reports misconduct to the NY Grievance Committee (nearly a year after his plea and shortly before the Virginia return date).
December 2023: NY Grievance Committee files a verified petition charging violation of Rule 8.4(c) and (d).
April 4, 2024: Matter referred to a Special Referee under 22 NYCRR 1240.8(b)(1).
June 3, 2024: Disciplinary hearing; EUO transcript admitted; Yu asks for leniency, citing mental health.
September 23, 2024: Special Referee sustains the charge.
October 29, 2024: Grievance Committee moves to confirm; Yu files no response.
July 30, 2025: Second Department confirms, imposes one‑year suspension.

Analysis

Precedents Cited

The Court expressly cited Matter of Hallock, 207 AD3d 90, in calibrating the sanction. While the decision does not expound on Hallock’s facts, the reference signals that comparable acts of dishonesty to a tribunal—particularly misrepresentations that undermine the integrity of judicial proceedings—commonly result in a one‑year suspension in the Second Department. The citation serves as an anchor for proportionality: when an attorney’s deceit directly affects a court proceeding, a year’s suspension is an apt benchmark absent stronger mitigation.

Governing Rules and Statutes Referenced in the Opinion

Rules of Professional Conduct (22 NYCRR 1200.0): Rule 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation) and Rule 8.4(d) (conduct prejudicial to the administration of justice).
Disciplinary Procedure: 22 NYCRR 1240.8 (formal proceedings; reference to Special Referee), 1240.15 (duties of suspended attorneys), 1240.16 (reinstatement applications).
Second Department CLE requirement for suspended lawyers: 22 NYCRR 691.11(a).
Judiciary Law § 90: Defines powers of the Appellate Division over attorney discipline and imposes conduct restrictions during suspension.
Virginia law (as factual context): Va. Code Ann. § 18.2‑456 (summary contempt) and § 54.1‑3904 (unauthorized practice of law).

Legal Reasoning

The Court’s reasoning proceeds in three clear steps:

Proof of Misconduct: The Special Referee, after hearing, sustained the charge based on Yu’s admissions and the record. Yu twice represented he was licensed in Virginia; claimed a Virginia office; and then tried a case (cross‑examined a police officer). He later told a clerk he would email a Virginia bar number “even knowing he had no plan to do so.” His post‑hoc attempt to parse the judge’s licensure question as “ambiguous” was rejected. The Appellate Division found the charge “properly sustained.”
Characterization of Conduct: The Court squarely characterizes the behavior as volitional and repetitive dishonesty in open court—conduct that goes to the heart of Rule 8.4(c) and impugns the administration of justice (Rule 8.4[d]). The fact that the lies occurred in front of a judge and facilitated unauthorized practice heightens the institutional harm: the court relied on the false assertions to allow advocacy to proceed.
Sanction Selection: While acknowledging mitigation—cooperation with the investigation—the Court finds it outweighed by the seriousness of the deceit. The Court notes the Special Referee’s observation that Yu “appears remorseful” but “it is unclear if [he] fully understands the severity.” The Court imposes a one‑year suspension, aligning with Hallock and indicating that repeated, intentional misrepresentations to a tribunal warrant substantial suspension even with some cooperation and after‑the‑fact education.

Mitigating and Aggravating Considerations

Mitigation credited:

Cooperation with the Grievance Committee’s investigation.
Expressions of remorse; completion of ethics CLE (pursuant to the Virginia resolution).
Mental health history was presented, though treatment began in 2023 and ended early 2024, making the causal connection to the 2021 conduct attenuated.

Aggravation emphasized:

Repetition and brazenness of the lies: two direct misstatements to the judge about licensure and a further misrepresentation to the clerk about supplying a nonexistent bar number.
Immediate and direct prejudice to a pending proceeding: the court allowed him to try a case based on his false claims.
Judicial contempt finding the same day and subsequent Virginia unauthorized practice charge (resolved via nolo contendere).
Delayed self‑reporting to New York (not until December 2022), notwithstanding the Virginia resolution contemplated prompt reporting.

On balance, the Court’s analysis demonstrates that “volitional” dishonesty directed at a tribunal overwhelms otherwise ordinary mitigation, particularly where the deceit had procedural consequences in a live proceeding. The one‑year suspension also reflects the Court’s concern that Yu had not fully internalized the gravity of his actions.

Jurisdiction Over Out‑of‑State Misconduct

Although the Court does not cite Rule 8.5(a) (choice of law; disciplinary authority), New York’s longstanding approach is to discipline attorneys for misconduct occurring outside the state. Matter of Yu fits squarely within that framework: lying to an out‑of‑state judge and engaging in the practice of law there (without authorization) constitute professional misconduct actionable in New York because the Rules of Professional Conduct govern the lawyer’s status as a New York attorney wherever he acts. The Court’s invocation of New York’s Rule 8.4 confirms that the locus of the misconduct is immaterial to disciplinary jurisdiction.

Procedure and Standard of Review

The proceeding advanced under 22 NYCRR 1240.8, with referral to a Special Referee to hear and report.
The Special Referee’s findings were supported by the hearing record and Yu’s own admissions (including his EUO transcript). The Court, upon the Grievance Committee’s unopposed motion, confirmed the report and imposed discipline.
The absence of opposition to the motion to confirm underscored that factual disputes were essentially resolved at the hearing stage.

Impact and Prospective Significance

This decision clarifies and reinforces several practice norms with concrete consequences:

Benchmark sanction for courtroom deceit: Repeated misrepresentations to a judge about licensure status that enable unauthorized advocacy will presumptively attract a suspension of about one year in the Second Department, absent compelling mitigation.
Cross‑border accountability: Out‑of‑state misconduct—particularly false statements to a tribunal—will be disciplined in New York under Rule 8.4, regardless of whether the other jurisdiction imposes or forgoes punishment.
Limited mitigation effect for post‑hoc remedies: Completing ethics CLE or later engaging in short‑term treatment after misconduct does not substantially diminish sanction where the original conduct was deliberate and recurrent.
Self‑reporting delays matter: When a practitioner agrees to report to New York as part of an out‑of‑state resolution, substantial delay undermines mitigation and may be viewed as aggravating or, at minimum, as diminishing the weight of cooperation.

Complex Concepts Simplified

Summary Contempt (Va. Code Ann. § 18.2‑456): A court’s power to punish misbehavior in its presence that obstructs justice. “Summary” means the judge may act immediately based on conduct observed in court.
Unauthorized Practice of Law (UPL): Engaging in activities reserved to licensed attorneys (e.g., appearing as counsel, examining witnesses) without being admitted or otherwise authorized in that jurisdiction.
Nolo Contendere (“No Contest”): A plea in which the defendant does not admit guilt but accepts punishment. While it may limit collateral uses in some contexts, disciplinary authorities may consider the underlying conduct and the terms of the resolution.
Rule 8.4(c) and (d): Prohibit dishonesty, fraud, deceit, or misrepresentation (8.4[c]) and conduct harmful to the justice system’s functioning (8.4[d]). Lying to a judge about licensure violates both: it is deceit and it distorts court processes.
Special Referee: A judge or appointed official who conducts a fact‑finding hearing in attorney discipline cases, then reports recommended findings to the Appellate Division, which makes final determinations.
EUO (Examination Under Oath): A sworn statement taken by disciplinary counsel; admissible in the hearing to establish facts and admissions.
Per Curiam: An opinion issued collectively by the court rather than authored by a single judge, typically signaling institutional consensus.
Pro Hac Vice: A procedural mechanism allowing an out‑of‑state lawyer to appear in a specific case in a jurisdiction where they are not admitted, typically with a local sponsor and court permission—none of which occurred here.
Reinstatement Requirements (22 NYCRR 1240.16): After a suspension period, the lawyer must show non‑practice during suspension, full compliance with suspension duties (22 NYCRR 1240.15), CLE compliance (22 NYCRR 691.11[a]), and overall proper conduct.

Practical Guidance for Practitioners

Do’s and Don’ts Across Jurisdictions

Do answer judicial questions about licensure with absolute accuracy. If not admitted locally, say so plainly.
Do seek pro hac vice admission with local counsel when permissible; otherwise, decline to appear or advocate.
Don’t sit at counsel table, examine witnesses, or address the court as counsel if you are not admitted in that jurisdiction.
Don’t attempt semantic evasions (“licensed” versus “admitted”). Courts will assess the substance, not wordplay.
Do proactively self‑report to New York if an out‑of‑state resolution requires it, and even apart from such requirements, consider prompt self‑reporting as a strong mitigating factor.
Do consult Lawyer Assistance Program resources when mental health or impulsivity may affect your practice, and be prepared to document treatment and its nexus to the conduct.

Compliance Checklist for Suspended Attorneys (per this Order)

Refrain from any practice of law or holding out as an attorney in any capacity.
Comply with all duties of suspended attorneys under 22 NYCRR 1240.15 (including client notifications, file transfers, escrow handling).
Maintain CLE compliance as required by 22 NYCRR 691.11(a).
Return any OCA secure pass and certify return in the affidavit of compliance (22 NYCRR 1240.15[f]).
Document compliance meticulously for the reinstatement application; earliest application here is May 29, 2026.

What This Decision Does Not Decide

The Court did not resolve issues of reciprocal discipline (there was no reported Virginia attorney discipline because Yu was not Virginia‑licensed).
The Court did not reach Rule 5.5 (unauthorized practice) under New York’s Rules; the charge proceeded under Rule 8.4, using Virginia events as factual predicates.
The Court did not adopt or discuss any per se rule regarding mental health mitigation; it simply weighed the timing and evidence presented here.

Conclusion

Matter of Yu powerfully reaffirms that candor to tribunals and respect for licensure boundaries are non‑negotiable. The Second Department’s characterization of the conduct as “volitional” and “blatant” underscores that repeated, intentional misstatements to a judge—especially when they permit immediate courtroom advocacy—strike at the core of professional integrity and the administration of justice. In sanctioning Yu with a one‑year suspension and citing Matter of Hallock, the Court sets a clear benchmark: absent compelling, well‑documented mitigation closely tied to the misconduct, a substantial suspension will follow.

For practitioners, the message is unmistakable: when outside your licensing jurisdiction, do not engage in any act that could be construed as the practice of law without proper authorization, and never equivocate about your licensure status in court. Post‑hoc ethics training and generalized claims of impulsivity will not overcome the gravity of deliberate courtroom deceit. For the bar and bench, this decision fortifies public confidence by demonstrating that New York will enforce its ethical standards across borders to protect the integrity of judicial proceedings.