Roberts, William 2/19/2019
For Educational Use Only
In re Soares, 97 A.D.3d 242 (2012)
947 N.Y.S.2d 233, 2012 N.Y. Slip Op. 04614
KeyCite Yellow Flag - Negative Treatment
Distinguished by People v. Chai, N.Y.Just.Ct., September 26, 2012  
97 A.D.3d 242
Supreme Court, Appellate Division,
Fourth Department, New York.
Matter of P. David SOARES,
An Attorney, Respondent.
Grievance Committee of the
Seventh Judicial District, Petitioner.
June 8, 2012.
Synopsis
Background: Disciplinary proceedings were instituted
against district attorney for allegedly engaging in conduct
prejudicial to administration of justice, when his office
released a public statement openly critical of order entered
in pending criminal case.
[Holding:] The Supreme Court, Appellate Division,
held that censure was appropriate sanction for district
attorney's misconduct.
So ordered.
West Headnotes (2)
[1] Attorney and Client
Deception of court or obstruction of
administration of justice
District attorney engaged in conduct
prejudicial to administration of justice when,
upon disqualification of his office from
prosecuting criminal matter and replacement
of district attorney's office with special
prosecutor, based on conflict of interest
allegedly arising from fact that the disqualified
attorneys had been named as defendants in
defamation action that had survived motion
for summary judgment, his office released
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a public statement openly critical of the
disqualification order as allegedly providing
criminal defendants with “get-out-of-jail-free
card.” Rules of Prof.Conduct, Rule 8.4.
Cases that cite this headnote
[2] Attorney and Client
Public Reprimand; Public Censure;
Public Admonition
Censure was appropriate sanction for district
attorney's misconduct when his office released
a public statement openly critical of order of
trial judge in pending criminal matter, while
attorney expressed remorse for incident and
promised to institute procedures in his office
for review of statements prior to their release
to public, he had disciplinary history, which
included two letters of admonition for making
improper and prejudicial public statements
regarding pending criminal matters. Rules of
Prof.Conduct, Rule 8.4.
1 Cases that cite this headnote
**234 PRESENT: CENTRA, J.P., PERADOTTO,
LINDLEY, AND MARTOCHE, JJ.
Opinion
PER CURIAM:
*243 Respondent was admitted to the practice of law
by the Appellate Division, Third Department on January
25, 2000, and currently serves as the District Attorney
for Albany County. A petition was filed in the Third
Department alleging that respondent engaged in conduct
prejudicial to the administration of justice when his office
released a public statement criticizing the decision of a
judge in a pending criminal matter. Respondent filed an
answer admitting the material allegations of the petition
and asserting certain legal defenses. The matter was
subsequently transferred to this Court by order of the
Third Department, entered May 20, 2011. Following that
transfer, the parties were afforded an opportunity to file
1
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For Educational Use Only
In re Soares, 97 A.D.3d 242 (2012)
947 N.Y.S.2d 233, 2012 N.Y. Slip Op. 04614
with this Court papers addressing any outstanding legal
issues, and respondent thereafter appeared before this
Court and submitted matters in mitigation.
Respondent admits that, in 2006, his office commenced
an investigation of the alleged illegal sale of prescription
medicine to Albany County residents by certain
individuals who were operating a pharmacy located in
Florida. With respect to that matter, a series of five
indictments was handed down by an Albany County
grand jury. In September 2008, after the fourth indictment
was dismissed and respondent's office was granted leave
to re-present the dismissed indictment, certain of the
defendants in the criminal proceeding filed in Florida
a civil action against respondent and a member of his
staff, as well as the Albany County District Attorney's
Office, asserting claims for unlawful arrest, unlawful
conspiracy, defamation and intentional infliction of
emotional distress. The civil claims were based on alleged
wrongful conduct committed by respondent and his office
in prosecuting the Albany County criminal matter. In
June 2010, the federal district court presiding over the
Florida civil action determined a motion for summary
judgment filed by respondent and the other Albany
County defendants, denying the motion with respect to
virtually all of the claims pending against them in that
action.
On November 15, 2010, Albany County Court (Herrick,
J.) dismissed the fifth indictment in the criminal
proceeding and disqualified respondent's office from
further prosecuting that matter based on a conflict of
interest arising from the federal civil action pending in
Florida. In disqualifying respondent's office, *244 Judge
Herrick noted that the federal civil claims in Florida
had survived a motion for summary judgment and that
respondent and his office therefore had a “personal,
professional and financial stake in the outcome of both
the civil and criminal cases.” Pursuant to County
Law § 701(1), Judge Herrick appointed a special district
attorney to replace respondent's office and granted the
special district attorney leave to re-present the dismissed
indictment. Following the determination of Judge Herrick
to replace respondent's office with a special district
attorney and in response to various media inquiries
regarding the matter, respondent's office, on November
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15, 2010, sent an electronic message to a newspaper
reporter, which stated the following:
**235 “Judge Herrick's decision is a get-out-of-jail-
free card for every criminal defendant in New York
State. His message to defendants is: ‘if your DA is being
too tough on you, sue him, and you can get a new one.’
The Court's decision undermines the criminal justice
system and the DA's who represent the interest of the
people they serve. We are seeking immediate relief from
Judge Herrick's decision and to close this dangerous
loophole that he created.”
On November 16, 2010, respondent's office forwarded the
same electronic message to a reporter with the Associated
Press.
The Third Department subsequently reinstated
respondent's office as the prosecutor in the Albany County
criminal matter (see Matter of Soares v. Herrick, 88
A.D.3d 148, 154, 928 N.Y.S.2d 386 [3d Dept. 2011] ), and
a federal appellate court subsequently determined that
respondent and the other Albany County defendants in
the Florida federal civil action were entitled to summary
judgment on, inter alia, qualified immunity grounds (see
Signature Pharmacy, Inc. v. Soares, 448 Fed.Appx. 917,
922–923 [11th Cir.2011], reh. denied 468 Fed.Appx. 946
[11th Cir. Jan. 23, 2012] ). Nevertheless, we do not
consider those subsequent determinations particularly
relevant to the legal issues in this proceeding inasmuch
as the relevant inquiry here is the reasonableness of
respondent's conduct in November 2010 when his office
issued the above-referenced statement.
[1] We conclude that respondent has violated rule
8.4(d) of the Rules of Professional Conduct (22 NYCRR
1200.0)—engaging in conduct that is prejudicial to the
administration of justice. Inasmuch as Judge Herrick
appointed a special district attorney and granted that
prosecutor leave to re-present the dismissed *245
indictment, we conclude that respondent's statement that
Judge Herrick's determination constituted a “get-out-of-
jail-free card for every criminal defendant in New York
State” was objectively false. For the same reasons, we
conclude that his statement that Judge Herrick created a
“ dangerous loophole” was reckless and misleading.
2
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In re Soares, 97 A.D.3d 242 (2012)

947 N.Y.S.2d 233, 2012 N.Y. Slip Op. 04614
Accordingly, after consideration of all of the factors in this
[2] We have considered, in determining an appropriate
matter, we conclude that respondent should be censured.
sanction, respondent's submissions in mitigation,
including his expression of remorse and his representation
Order of censure entered.
to this Court that he has instituted procedures in his
office for review of statements prior to their release
to the public. We have also considered, however, All Citations
respondent's disciplinary history, which includes two
letters of admonition for making improper and prejudicial 97 A.D.3d 242, 947 N.Y.S.2d 233, 2012 N.Y. Slip Op.
public statements regarding pending criminal matters. 04614

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works.

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 3