"Inappropriate Litigation Behavior"

The New York Appellate Division for the First Judicial Department concluded that a four-month suspension with fitness was the appropriate sanction for misconduct involving "inappropriate litigation behavior"

Respondent

He is the sole equity partner and founding owner of the law firm Adam Leitman Bailey, PC, which focuses on the practice of real estate law. The firm employs 26 attorneys and 24 legal support staff.

The charges

The allegations in the petition concerned respondent's conduct in two different matters. The first occurred in November 2016, when the second day of an arbitration hearing was being conducted in a conference room at respondent's law firm, which represented one of the parties. Respondent, who was not handling the arbitration, entered the conference room in the middle of a witness's testimony, started taking photographs with his phone, and stated:

"This will be in the newspaper when I put this in there after we kick your asses. You should be ashamed of yourselves for kicking people out of a building and you have to live with yourself."

The petition alleged that respondent's conduct violated Rules 3.3(f)(2), 3.3(f)(4), and 8.4(d).

In the second matter, respondent's firm represented the owner of several residential buildings. A resident of one of these buildings, James Dawson, allegedly made postings to a website accusing the owner of overcharging tenants. Respondent sent a letter to Dawson dated September 7, 2016, accusing him of creating a false and defamatory website and demanding that he take it down or face a lawsuit. Respondent received no response to this letter.

On September 13, 2016, respondent sent Dawson a text message which read, in relevant part:

"We are filing a lawsuit against you for millions of dollars of damages you have caused as a result of your defamatory website. . . . We are also in contact with the location [sic] police station and we have a copy of the complaint your ex-girlfriend filed against you and we will be using all means necessary to protect our clients."

Later on the same day, respondent telephoned Dawson, who recorded the conversation. Respondent told Dawson, inter alia, that Dawson was "not that bright," and that, if he did not take the website down, he would "be bankrupt soon." Respondent told Dawson that he "should commit suicide. . . . [y]ou're one of those people in the world that really should just kill themselves because you're worthless." While still on the phone with Dawson, respondent said to a person in his office about Dawson "start the lawsuit. . . . I need him arrested. . . . I gotta get this guy. He's gotta be arrested." Respondent told Dawson that respondent's employee who would be "running the investigation" of Dawson "used to run the district attorney's office," and claimed that respondent's office was "in contact" with the District Attorney's office. He told Dawson, "[y]ou have no idea what you stepped into. . . . Welcome to my world. Now you're my bitch. . . . you're gonna be paying for this heavily for the rest of your life."

The petition alleged that this conduct violated rules 3.4(e) and 8.4(h).

Before the referee

Following the disciplinary hearing, the Referee recommended a three-month suspension. The Referee noted that respondent and his law firm have previously been admonished by the AGC in 2011 and 2014, respectively, and that in those matters, as in the instant one, respondent "engaged in excessively aggressive behavior while representing a client. . . . [,] failed to conduct himself within the bounds of propriety, and. . . violated one or another Rule." The Referee found that respondent had never apologized to the arbitrator, the witness whose testimony respondent interrupted, or to Mr. Dawson. He further found that respondent:

"showed remorse, and is unquestionably very sorry [] that his actions have caused his present problems. However, he refuse[d] to take full responsibility for his actions, which would include admitting he knew that he was interrupting an arbitration, properly apologizing, and recognizing that his aggressive litigation tactics must be controlled."

Finally, the Referee acknowledged respondent's testimony about what he asserted were mitigating factors, including difficulties he was experiencing as the parent of a newborn, but noted that "lawyers are required to control their emotions, and his problems are unrelated to his misbehavior."

The AGC now moves to confirm the Referee's report, and seeks imposition of the recommended sanction of three months' suspension. Respondent opposes the AGC's motion and cross-moves for a sanction of public censure.

The court on sanction

Here, the conduct with which respondent has been charged did not occur over many years and affect numerous persons like the conduct described in Matter of Kahn. In addition, unlike the respondent in Matter of Sondel, respondent here has not been held in contempt of court for the conduct with which he was charged. However, he has twice previously been admonished by the AGC for inappropriate litigation behavior. Given this and his failure to take full responsibility for the conduct that led to the instant proceeding, we find that a four-month suspension and a referral to the New York City Bar Association's Lawyer Assistance Program for counseling is an appropriate sanction in this case.

Accordingly, the AGC's motion should be granted to the extent of confirming the Referee's finding of facts and conclusions of law, the sanction recommendation disaffirmed, respondent is suspended from the practice of law for a period of four months, and until further order of this Court, and respondent is directed to engage in counseling for a period of up to one year, as determined and monitored by the New York City Bar Association's Lawyer Assistance Program. Respondent's cross motion should be denied.

(Mike Frisch)