Thursday, December 11, 2008

Court Sanctions Lead To Bar Discipline

A lawyer who was found, in four separate instances, to have made false or friviolous assertions in litigation was suspended for one year by the New York Appellate Division for the Third Judicial Department. In each instance, the lawyer had been subject to court-imposed sanctions.

As to the disciplinary sanction, the court noted:

In mitigation, we have considered that respondent has no public disciplinary record and that his misconduct has already been punished to some extent by sanctions. However, we find that this record clearly shows that respondent has repeatedly crossed the line separating zealous advocacy from professional misconduct. Accordingly, we conclude that, to protect the public, deter similar misconduct, and preserve the reputation of the bar, respondent should be suspended from practice for a period of one year.

In one instance, the lawyer had accused a judge of participating in a criminal conspiracy to predetermine cases, mail fraud, regular impermissible exparte communications and conspiracy to tamper with court files. In another case, sanctioons had been imposed based on a judicial finding that the lawyer used "litigation to further 'his personal vendetta' against the Catholic Church." (Mike Frisch)

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Double jeopardy? Why was this proceeding needed? Couldn’t each of the courts have adequately handled the respondent’s conduct? Indeed, didn’t each of the courts do exactly that?

In the 2005 Hummel case, I can understand why a judge might need to act quickly and decisively, and therefore summarily, in handling a contempt of court. But how could Judge Hummel possibly justify his continuing to handle the case on remand? He was the object of the charges and therefore has an obvious conflict of interest.

Interesting that the court includes every justification for their actions (“to protect the
public, deter similar misconduct, and preserve the reputation of the bar”) and neglects the one real justification for this action (to protect the judiciary).

Cases such as this are always suspect because the bar serves as an important check on judicial power. By punishing those that bring such charges, the judiciary raises reasonable concerns that the judiciary might be abusing its power so as to inhibit those who bring such charges. Although the court might be justified in this case, there can be no question that disciplinary actions such as this also inhibit well founded accusations of inappropriate conduct by the judiciary. It is notable that the Third Department did not address and of the allegations levelled by the respondent.


Posted by: FixedWing | Dec 11, 2008 9:50:51 AM

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