Thursday, April 24, 2014
A false statement to a third party resulted in an attorney's public censure by the New York Appellate Division for the First Judicial Department.
Here's the story
Shortly after her admission in 2006, respondent opened her own practice and also practiced as of counsel to a New York law firm. Respondent specializes in consumer fraud actions. In November 2010, respondent commenced a proposed class action in Texas on behalf of plaintiff Terry Smith against the online dating service Match.com. Respondent, who is not admitted to practice in Texas, associated herself with local counsel to enable her participation in the action. Respondent did not personally draft the complaint but had input in its drafting. Except for one occasion, respondent did not appear in the Texas court; however, she did participate in discovery and communicated on several occasions with the Texas defense counsel.
On July 5, 2011, respondent placed a telephone call to Match.com's customer service department to obtain the name of a supervisor to depose. Respondent, using a false name, left a voice message and falsely identified herself as a journalist calling from a business journal for a story. A public relations coordinator returned the call later that day. When respondent answered, she used her real name, but when the coordinator stated she was returning a call from the business journal, respondent again used the false name. Respondent was unable to obtain the name of a supervisor, because she did not provide sufficient journalistic credentials in response to the coordinator's inquiries. Realizing she had acted improperly, respondent promptly disclosed her actions to defense counsel. In explaining her actions, respondent claimed that formal discovery would have been ineffective because defense counsel had submitted nonresponsive answers to her prior discovery requests.
On March 15, 2012, the Texas state court issued an order compelling plaintiff Terry Smith to produce certain discovery documents. When plaintiff did not produce the documents, defendant moved for fees and costs and to have plaintiff declared pro se, based on respondent's failure to be admitted pro hac vice. On April 23, 2012, the court held a hearing on the motion at which respondent appeared telephonically. A month before the hearing, plaintiff's local counsel withdrew from the action. Notwithstanding its withdrawal, the local counsel informed respondent that it would still sponsor her pro hac vice application. However, counsel withdrew that offer, just days before the hearing.
On April 25, 2012, the Texas court ruled that respondent had engaged in the unauthorized practice of law by participating in Smith's lawsuit without having satisfied Texas' rules for pro hac vice admission and directed, among other things, that respondent file a complete pro hac vice application, with proper support, on or before May 3, 2012 or the court would enjoin her from further participation in the action. The order also awarded Match.com $10,000 in costs and fees, jointly and severally assessed against respondent, her New York firm and plaintiff, payable to defense counsel. On May 11, 2012, the court enjoined respondent from further participation because she failed to file a complete pro hac vice application.
Respondent, through local counsel, appealed the district court's order of April 25, 2012 to the Court of Appeals for the Fifth District of Texas. The court dismissed the appeal on the grounds that, under Texas law, it was not subject to appellate review. The appellate court also ordered respondent to pay Match.com's costs in defending the appeal as sanctions for filing a frivolous appeal. In October 2012, the court granted defendant Match.com's motion for summary judgment dismissing the action and did not rule on respondent's motion to reconsider the prior order.
During these disciplinary proceedings, respondent acknowledged the Texas court's April 25, 2012 order but disputed that she had engaged in the unauthorized practice of law. Respondent also acknowledged that she had not paid the $10,000 and did not intend to do so because, in her view, she was not given a proper opportunity to appeal. These proceedings also brought to light two federal actions that respondent commenced against Match.com in Texas.
Respondent was admitted pro hac vice in one of the actions but not the other. The Committee argued that respondent intended to mislead when she testified at her deposition that she had been admitted pro hac vice in both actions. Respondent testified that she was also involved as counsel in actions pending in Pennsylvania and Florida, but was not admitted to practice law in these jurisdictions.