Thursday, February 18, 2016

Is Federal Foreign? In This Case, Yes

A fine procedural point was resolved in favor of imposing reciprocal discipline by the New York Appellate Division for the First Judicial Department based on sanctions imposed for poor appellate lawyering by a federal court.

The court rejected the attorney's  contention that the federal sanction was not imposed by a foreign court as required by reciprocal discipline rules

Respondent argues that federal courts do not meet the definition of a "foreign jurisdiction" under 22 NYCRR 603.3(a) because: (1) there is no New York case law which directly addresses this issue; and (2) other jurisdictions, specifically Georgia and Virginia, have held that, in the absence of an explicit definition, federal courts do not qualify as "another jurisdiction" for the purpose of reciprocal discipline. Respondent urges us to find that a "foreign jurisdiction" includes only licensing jurisdictions (i.e., states), which the Second Circuit is not. He further contends that, assuming arguendo, the definition of a "foreign jurisdiction" is ambiguous under 22 NYCRR 603.3(a), we should resolve the ambiguity in respondent's favor and not treat federal courts as such for the purpose of reciprocal discipline. Finally, respondent argues that, even if we consider the Second Circuit a "foreign jurisdiction" under 22 NYCRR 603.3(a), we are not bound by its sanction determination and, considering our precedents and his factors in mitigation, we should impose nothing more than a public censure, or, in the alternative, that he be granted a sanction hearing.

In response, the Committee argues that we have impliedly defined federal courts as a "foreign jurisdiction" within the meaning of 22 NYCRR 603.3(a) by imposing, within the last 10 years, reciprocal discipline in no less than 60 cases where attorneys have been disciplined in federal courts, including cases based on discipline imposed by the Second Circuit. The Committee further argues that a reciprocal 18-month suspension is in general accord with our precedents. Finally, the Committee contends that respondent's request for a sanction hearing should be denied because he had not raised the defense that his misconduct before the Second Circuit would not constitute misconduct in New York (22 NYCRR 603.3[c][3]).

Respondent's argument that the Second Circuit does not qualify as a "foreign jurisdiction" within the meaning of 22 NYCRR 603.3(a) is without merit. We have repeatedly imposed reciprocal discipline based on discipline imposed by the Second Circuit.

I recall the Georgia case mentioned here and thought the result was nonsense.

In my experience, suspensions by federal courts are sometimes subject to less-than-reflexive identical discipline in state courts.

There was a case back in 1987 where the Fourth Circuit had disbarred a lawyer who wrote a disrespectful letter to a judge. I believe it was Judge Newman who wrote the opinion reducing the sanction to a public censure. 

The Board cites no cases to show that a personal attack or insulting remark directed at a judge or magistrate in the trial courts of the District of Columbia has been punished by proceedings under Rule XI, supra. To the contrary, it appears that in this jurisdiction the traditional method of dealing with contumacious behavior in the courtroom or in the course of a judicial proceeding is to cite the offender for contempt of court. See In re Schwartz, 391 A.2d 278 (D.C.1978); In re Gates, 248 A.2d 671(D.C.1968). In the circumstances of this case, we deem a public censure to be the appropriate discipline.

Judge Newman thought that judges should be made of sterner stuff and that disrespect was not enough to get a lawyer disbarred. He could dish it out (to me once in awhile) and he could take it. A fascinating judge. 

Newman on the bench stories are legion and legendary. Further affiant sayeth naught. 

He is the author of perhaps my most widely known disciplinary case, In re Kersey.

Tom Henderson was on the brief with me. 

That oral argument - in the pre audio recording days - is one of the most memorable days of my professional life. Indeed, there is a backstory about the Kersey case that has never been written. I've been tempted to as one of the dwindling number of people who know it. My problem is that it is a ripping good yarn and a lot of it is at least arguably still confidential thirty years on.

The dilemma of the former bar prosecutor.

Also on the Evans division was one of my all-time favorite judges, the Hon. William C. Pryor. 

Here, the lawyer got 18 months - same as the original sanction.

Correction: The D.C. opinion is per curiam, but he is on the division and it is clearly Newmanesque.  

As former D.C. Bar Counsel, Len Becker often remarked "some of the things I remember best never happened." (Mike Frisch)

Bar Discipline & Process | Permalink


Did Len Becker tell you he was paraphrasing Mark Twain?

Posted by: Gogel | Feb 19, 2016 5:30:28 AM

Nope. think I'll file a bar complaint alleging failure to attribute.

Seriously, as I have been talking about bar counsel history over the past few days, let me acknowledge a debt of gratitude to Leonard H. Becker for making me a better lawyer after I thought I already knew everything there was to know.

Posted by: Mike Frisch | Feb 19, 2016 6:37:46 AM

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