Tuesday, February 27, 2018

A Man In Kentucky

A Kentucky sanction was imposed reciprocally on an attorney by the New York Appellate Division for the First Judicial Department

The instant matter arises from respondent's representation of a client whose employment as a Kentucky public school teacher was terminated based on findings of misconduct made by an administrative tribunal. In 2005, the teacher, represented by respondent, commenced an action under 42 USC § 1983 in the United States District Court for the Eastern District of Kentucky against the school principal, an attorney for the school board, the superintendent of the school system, and the presiding officer at the final administrative hearing on the charges against the teacher. The district court dismissed the complaint as time-barred and, upon its own motion, imposed sanctions on respondent personally pursuant to 28 USC § 1927, based on findings that, in spite of prior warnings by the court, he had repeatedly filed papers advancing specious legal claims, using inappropriate language, and/or engaging in personal attacks. On appeal, the United States Court of Appeals for the Sixth Circuit affirmed both the dismissal of the complaint and the imposition of sanctions on respondent (Dixon v Clem, 492 F3d 665 [6th Cir 2006]).

Based on his conduct in Dixon, as found by the federal courts, the Kentucky Bar Association brought disciplinary charges against respondent. The Kentucky disciplinary proceedings culminated in April 2013 with a decision by the Supreme Court of Kentucky that affirmed three findings of misconduct against respondent and imposed on him a suspension from the practice of law of 181 days (Kentucky Bar Assn. v Blum, 404 SW3d 841 [Ky 2013], cert denied sub nom Blum v Kentucky Bar Assn., __ US __, 134 S Ct 1952 [2014]). The Kentucky Supreme Court affirmed the following findings of misconduct: (1) that respondent had improperly threatened to advance disciplinary charges against opposing counsel in the federal litigation in order to gain advantage in a civil matter, in violation of Kentucky Supreme Court Rule 3.130-3.4(f); (2) that respondent had engaged in conduct intended to disrupt a tribunal, in violation of Kentucky Supreme Court Rule 3.130-3.5(c); and (3) that respondent, without basis, had repeatedly impugned the personal integrity of the administrative hearing officer his client was suing in the federal litigation, in violation of Kentucky Supreme Court Rule 3.130-8.2(a), which prohibits an attorney to make false statements concerning the integrity of an adjudicatory office.

The court rejected his contentions

With regard to respondent's defense that there was a lack of notice or opportunity for him to be heard in the Kentucky proceedings, he argues that the charges filed against him did not allege with specificity the disciplinary rule violated by each of his offending statements and actions. Respondent raised this argument before the Kentucky Supreme Court, which rejected it. Moreover, the record shows that respondent appeared pro se at the disciplinary proceeding before a trial commissioner of the Kentucky Bar Association, at which he actively defended himself, and then pursued appeals to the Association's Board of Governors and, ultimately, to the Kentucky Supreme Court. Accordingly, we are satisfied that respondent received notice and an opportunity to be heard in the Kentucky disciplinary proceedings, consistent with the requirements of due process.

With regard to respondent's defense of infirmity of proof, he argues that the Kentucky court provided insufficient evidence to support its finding that discipline should be imposed. However, the record relied on by the Kentucky Supreme Court, which includes respondent's filings in Dixon, and that court's detailed discussion of the evidence against respondent in its decision imposing discipline, demonstrate that the findings of misconduct against respondent in Kentucky were based on sufficient evidence.


the imposition of the same sanction imposed by the Kentucky Supreme Court is in order here, and respondent should be suspended from the practice of law in New York, prospectively, for six months. In addition, respondent, in violation of former 22 NYCRR 603.3(d), waited nearly three years before finally, in December 2015, notifying the Committee of the discipline imposed by the Kentucky Supreme Court in April 2013, and he provided such notice only after an adversary in litigation in Supreme Court, New York County, brought the Kentucky discipline to the attention of the court, which thereupon directed respondent to notify the Committee. We note that a suspension retroactive to the date of respondent's suspension in Kentucky would be inappropriate in light of respondent's failure to give this state's disciplinary authorities prompt notice of the Kentucky discipline (see Matter of Gilbert, 268 AD2d 67, 70 [1st Dept 2000]).

The Sixth Circuit decision is linked here. (Mike Frisch)


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