Friday, June 19, 2009

Not Even Close

The New York Appellate Division for the Second Judicial Department imposed a three-year suspension as reciprocal discipline based on findings of misconduct in California. The court affirmed a referee's conclusion that the lawyer had not "come close" to establishing an infirmity in the California bar case:

The respondent's testimony consisted of a series of arguments, while referencing various state court documents. His initial argument addressed the burden of proof. The respondent maintained that this Court had to apply a clear and convincing standard since that was the standard applied in the California proceedings. The respondent contended that the evidence failed to support the findings that he: (1) planned and arranged for a sham marriage to circumvent a court order, while simultaneously prosecuting an appeal to overturn the same order, and (2) sought to mislead or deceive any court by failing to inform the court of the marriage. He maintained that he had a nonfrivolous argument that the Weisses could consent to the marriage in their capacity as temporary guardians because they retained authority to consent by virtue of the stay granted, which was a blanket stay. The respondent maintained that he reasonably believed that the marriage did not moot the appeal. Hence, he contended that the evidence was insufficient to find that he intended to deceive the appellate court.

With regard to the imposition of discipline, the respondent argued that any discipline imposed should be made retroactive to the effective date of his California suspension, and that any decision imposing discipline should not contain any recitation of the facts because the order of the Supreme Court of the State of California did not contain any recitation, and the Opinion on Review of the State Bar Court was designated "Public Matter - Not Designated for Publication." The respondent acknowledged that the decision was available to any member of the public upon request. The Grievance Committee pointed out that the decision of the Hearing Department of the State Bar Court, which was the initial decision and included a complete recitation of the facts, is published on the internet.

The Special Referee concluded that the respondent did not "come close" to meeting his burden of proof on his infirmity of proof defense. The Special Referee found nothing that persuaded him that the respondent did not egregiously violate the basic ethical obligation of an attorney to uphold the integrity of the legal system, and that the respondent's concern for the welfare of a young girl "did not justify in any way conduct that involved circumventing a court order, ratifying a plan to arrange her marriage in a foreign country and withholding this clearly critical information from the court." The respondent's conduct in bringing the court's attention to "two new events," while omitting mention of the marriage, the Special Referee found was "clearly pure artifice."

The underlying case involved the lawyer's representation of a child's maternal grandparents in a custody dispute with the child's father after the mother had died. (Mike Frisch)

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What an interesting case. I think this is the perfect example of a case which is not well suited to reciprocal discipline.

It is quite clear that the attorney’s real crime here was attempting to defeat the jurisdiction of the California appellate court. Yet from my reading of the facts as related by the New York court, the only thing that he might have done which was wrong was his failure to inform the California court of subsequent marriage and that seems to have been adequately dealt with by the appellate court’s costs order. Why a frivolous appeal justifies three years suspension is beyond me.

I also note that the California court dismissed the appeal as frivolous based upon the marriage but then annulled the marriage as a sham. So apparently the appeal was not frivolous after all?

The fact is, multiple jurisdictions often have subject matter jurisdiction over a marriage and in the matrimonial area, it is acceptable practice to engage in jurisdictional fights to obtain what a party wishes. I do not see how a lawyer’s advice to use this technique is necessarily wrong and I think he might have had a duty to suggest it as an option. In fact, it appears to me that it might have been the California court which exceeded its authority by attempting to annul a marriage sanctioned by another jurisdiction. At most, the California court could refuse to recognise that marriage.

No wonder the respondent showed a lack of remorse and a failure to appreciate the seriousness of his conduct. In fact, I would say that it was the New York court which failed to properly recognise the validity of the debate on whether the respondent had really engaged in misconduct. The New York court’s attempt to force this highly political case into the reciprocal discipline regime only serves to show the flaws in that system.


Posted by: FixedWing | Jun 19, 2009 11:04:21 AM

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