Tuesday, May 6, 2014
The New York Appellate Division for the First Judicial Department has disbarred an attorney who was convicted of a series of offenses and failed to participate in the ensuing proceedings.
The relevant events began with respondent's January 19, 2010 guilty plea to three counts of aggravated harassment in the second degree (Penal Law § 240.30, a class A misdemeanor), and two counts of stalking in the fourth degree (Penal Law § 120.45, a class B misdemeanor). These charges stemmed from respondent's threats to do bodily harm to certain judges as well as the lawyers who represented his landlord in a summary proceeding that was brought against him. As a condition of the plea agreement, respondent was required to resign from the Bar without the possibility of an application for reinstatement. On April 12, 2010, respondent submitted a purported affidavit of resignation from the Bar and was sentenced to a conditional discharge. On April 29, 2010, the Committee made a motion before this Court for an order accepting respondent's resignation from the practice of law and striking his name from the roll of attorneys. However, we notified respondent that the Committee's motion could not be granted because his signature on the affidavit was not notarized as required by 22 NYCRR § 603.11. Subsequently, respondent submitted another affidavit that was notarized but deficient because it omitted the required acknowledgment that respondent could not have successfully defended himself on the merits with respect to any charges predicated on the misconduct being investigated by the Committee (see 22 NYCRR § 603.11[a]). Accordingly, we denied the motion and remanded the matter to the Committee "for further disciplinary proceedings including the issue of respondent's capacity."
Pursuant to this Court's order, the Committee examined respondent under oath on April 7, 2011. During his testimony, respondent admitted that in February 2009, he told a court clerk that he should be taken seriously and was "seriously considering resorting to violence." At the examination, respondent also acknowledged his plea allocution by which he admitted that on February 17, 2009 he asked the clerk whether he would have to "come back [to the courthouse] with a bat." Respondent also admitted at his examination that he sent a box cutter to a judge along with a letter directing her to show it to six other judges as well as his landlord's attorneys. Following the examination under oath, the Committee attempted to have respondent examined by a psychiatrist for the purpose of obtaining an evaluation of his mental capacity. Respondent however failed to comply with the Committee's several demands that he make himself available for the necessary psychiatric examination...
On July 30, 2013, a Hearing Panel began its consideration of the issue of sanction. Although informed of the proceeding before the Hearing Panel, respondent again elected not to appear. Among the evidence considered by the Hearing Panel was a hospital record that documented the fact that on January 31, 2009, respondent was admitted to the psychiatric ward of the UCLA Medical Center with a diagnosis of bipolar disorder. Although admitted on a voluntary basis, respondent was placed on an "involuntary hold" which terminated on February 9, 2009 when a court in California granted respondent's writ of habeas corpus, finding that he was not "gravely disabled." By a report dated September 5, 2013, the Hearing Panel confirmed the Referee's liability findings but disaffirmed the recommendation of disbarment. Here, the Hearing Panel cited what it considered to be clear signs "of respondent's possible lack of capacity during both the period of the underlying acts of misconduct and at various times since then." In lieu of disbarment, the Hearing Panel recommended that respondent be indefinitely suspended from practice pursuant to 22 NYCRR § 603.16. Nonetheless, the Hearing Panel found that respondent refused to be examined by a qualified psychiatric expert and that he failed to answer the charges or appear at the hearings before the Referee and the Hearing Panel.
On the record before us, it does not appear that 22 NYCRR § 603.16 provides for the [*4]imposition of an open-ended indefinite suspension. 22 NYCRR § 603.16(a), which the Hearing Panel cited, provides for an indefinite suspension where an attorney "has been involuntarily committed to a mental hospital . . ." Suspension under subsection (a) would not be available in light of the fact that respondent's aforementioned brief involuntary hospitalization in California was terminated upon a judicial finding that he was not gravely disabled. Subsection (b) of the rule, which the Hearing Panel also cited, is inapplicable because the matter before us is not an application by the Committee for a determination of whether respondent is incapacitated. As noted above, the Committee's application calls for our determination of the sanction to be imposed. The remaining subsection, (c), does not apply because there is no claim that respondent is suffering from a disability that makes it impossible for him to defend himself in this proceeding.