Matter of Whiting

Matter of Whiting 2010 NY Slip Op 09062 [79 AD3d 1359] December 9, 2010 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 16, 2011

In the Matter of Kenneth P. Whiting III, an Attorney, Respondent. Committee on Professional Standards, Petitioner.

—[*1] Michael G. Gaynor, Acting Chief Attorney, Committee on Professional Standards, Albany (Michael Philip Jr. of counsel), for petitioner. Hinman, Howard & Kattell, Binghamton (Jon S. Blechman of counsel), for respondent.

Per Curiam. Respondent was admitted to practice by this Court in 1978. He maintains an office for the practice of law in the City of Binghamton, Broome County.

On April 27, 2010, respondent was convicted in the United States District Court for the Northern District of New York upon a plea of guilty to one count of willful failure to file an income tax return for the calendar year 2004 in violation of 26 USC § 7203, a federal misdemeanor. He was sentenced on September 7, 2010 to three years of probation, a $25 special assessment, a $2,000 fine, 100 hours of community service, and payment of all interest, taxes and penalties due.

Petitioner moves for a final order of discipline, pursuant to Judiciary Law § 90 (4) (g), based upon respondent's conviction of a statutorily defined serious crime (see Judiciary Law § 90 [4] [d]-[h]). We have heard respondent in mitigation. [*2]

Respondent pleaded guilty to one count of a multicount indictment covering four years of failure to file federal income tax returns. An attorney has a "duty to comply strictly with statutory mandates, particularly those relating to making income tax returns and payment of taxes due" (Matter of Abbate, 38 AD2d 144, 144 [1972]). Respondent has been previously censured for professional misconduct by this Court (Matter of Whiting, 303 AD2d 901 [2003]). We note that respondent expresses remorse and has already been punished by virtue of his federal sentence and the attendant adverse publicity.

Under all of the circumstances, we conclude that respondent should be suspended from the practice of law for a period of three months. On any application for reinstatement, respondent shall submit documentation demonstrating that he is in compliance with his federal and state income tax obligations, in addition to the showing required under our rules (see 22 NYCRR 806.12 [b]).

Mercure, J.P., Malone Jr., Stein and Garry, JJ., concur. Ordered that petitioner's motion is granted; and it is further ordered that respondent is suspended from the practice of law for a period of three months, effective 20 days from the date of this decision, and until further order of this Court; and it is further ordered that, for the period of suspension, respondent is commanded to desist and refrain from the practice of law in any form, either as principal or as agent, clerk or employee of another; and respondent is hereby forbidden to appear as an attorney or counselor-at-law before any court, judge, justice, board, commission or other public authority, or to give to another an opinion as to the law or its application, or any advice in relation thereto; and it is further ordered that respondent shall comply with the provisions of this Court's rules regulating the conduct of suspended attorneys (see 22 NYCRR 806.9).