Friday, December 26, 2008

Reciprocal Censure For Violations In Pro Hac Vice Motion

An attorney who had accepted a censure in Montana for misconduct in connection with a motion for pro hac vice admission to a Montana federal court was reciprocally disciplined by the New York appellate Division for the Second Judicial Department. The New York court rejected a variety of challenges to the imposition of the identical sanction:

The respondent's argument is that none of these charges would be worthy of the imposition of discipline in New York. In his view, his admitted violations were ministerial and technical and would not warrant punishment if charged in New York.

Based upon the evidence adduced, the defenses advanced by the respondent are without merit. The respondent was not deprived of due process in the Montana proceeding in which he was represented by able counsel and had ample opportunity to be heard and to present evidence in his own defense. He participated in the investigation and was fully apprised of the ramifications of his stipulation.

Nor was there such an infirmity of proof establishing the misconduct as to give rise to a clear conviction that this Court, consistent with its duties, could not accept the findings of the Montana court as final. The terms of the Tendered Conditional Admission and Affidavit of Consent are clear. Although he was not yet an admitted attorney in Montana, the respondent was an experienced New York attorney who could not persuasively argue that he was ignorant of the importance of that writing. Notwithstanding the respondent's categorization of his violations as ministerial and technical, he nevertheless made material misrepresentations to a court of law, even if by omission.

The attorney testified in the New York proceeding that he had accepted the Montana sanction by stipulation because his lawyer had advised him that he would " better" if he contested the charges. (Mike Frisch)

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The sole basis for the respondent’s discipline in Montana was his failure to mail a form stating that he agreed to be bound by the Montana Rules of Professional conduct. This appears to have been nothing but a procedural requirement and clearly did not preclude the Montana courts from applying those rules to the respondent. The supposed misrepresentation was based upon the respondent’s failure to tell the judge that he had not signed the form. There was no affirmative misrepresentation. He never told the judge that he had signed the form. One has to wonder whether Montana judges have nothing better to do with their time than to pursue this sort of b.s.

One can definitely see why the respondent argued that this his alleged failings would not amount to misconduct in New York. It is also easy to see why the Special Referee made no finding on the issue of whether imposition of reciprocal discipline would be unjust. The Court resolved this issue with one nonsensical sentence: “In view of paragraph four of the respondent's Tendered Conditional Admission and Affidavit of Consent, in which he acknowledged that he might be subject to reciprocal discipline by the New York authorities, his argument that the imposition of reciprocal discipline would be unjust is baseless.” What on earth does his acknowledgement that he might be subject to discipline in New York have to do with the justness of imposing that discipline? Why is it that every time I read an opinion from New York, I feel like I’m being sucked further down the rabbit hole?

In truth, what this opinion really stands for is the principle that New York intends to automatically impose reciprocal discipline no matter how ridiculous the originating case. There is no real intent to apply the Selling v. Radford standards.

I do give the Second Department credit on one point though, at least they were willing to vacate their initial order imposing discipline and to assign the matter to a Special Referee to investigate and report. This is something that the First Department absolutely refuses to do in reciprocal discipline cases even though their rule similarly requires that they do so.


Posted by: FixedWing | Dec 27, 2008 6:09:06 AM

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