Wednesday, December 30, 2020

It (Should Not Have) Happened In Brooklyn

The New York Appellate Division for the First Judicial Department has rejected a referee's proposed public censure of an attorney in favor of suspension

The petition alleges that respondent made offensive remarks to and about three attorneys from Brooklyn Legal Services that were his adversaries in landlord-tenant matters. Respondent admitted some of the factual allegations but denied all the charges. Respondent's law practice largely consisted of representing clients in landlord-tenant court; he was an active practitioner in Brooklyn's Housing Court and frequently litigated matters against tenants represented by attorneys from Brooklyn Legal Services.

Charge one alleges that respondent violated rule 3.3(f)(2) by engaging in undignified or discourteous conduct while appearing before a tribunal by using gender pejorative language, specifically, on January 13, 2017 respondent repeatedly referred to opposing counsel as a "bitch" in front of her clients and other witnesses in the hallway adjoining a courtroom at the Brooklyn Housing Court. Charge two relies on the same facts as charge one and states that respondent violated rule 8.4(h) by engaging in conduct that adversely reflects on his fitness as a lawyer.

The facts

The complainant testified that on January 13, 2017, she was at Brooklyn Housing Court representing tenants in a case in which respondent represented the landlord. She was in a packed hallway of the courthouse speaking with her clients and was not ready to have her case called because she needed to consult with her supervisor. Respondent, the complainant's adversary, insisted that he was going to have the case called. The complainant stated she sternly told respondent not to do it, and he said something to the effect of "Well excuse me, Ms. Boss-ma'am" and "You don't have to be a bitch about it." The complainant testified she was shocked and appalled by the use of those terms and asked respondent to repeat what was said, and he repeated "I said you are a bitch," and then called her a "bitch" loudly a few more times in front of the complainant's clients and colleagues. The complainant estimated that respondent called her a "bitch" five times. She testified that she pointed a finger at respondent but did not touch him. The Committee's witnesses confirmed her version of events, including that respondent repeated the word "bitch" when the complainant asked him what he had called her.

The complainant stated that respondent never apologized to her and that "I felt like the comments were racist like the comments were sexist, and I feel like if I was a white man, no matter what my years of experience in this practice, he would not have said that. And so, I think that my position as a young black woman enabled him to — made him feel comfortable talking down to me and in treating me like I am not too — a licensed attorney practicing in this state."

In addition, she testified that there was one occasion when she witnessed respondent refer to "her former supervisor as "Che" or "Che Guevara" outside of his presence, which shocked her.

Respondent attempted to justify his actions. He stated that he only used the word "bitch" once, which is contradicted by the testimony of the witnesses who observed the incident. He implied that his behavior was warranted because the complainant became physically aggressive and poked him on the forehead with her finger about three or four times. None of the witnesses, including all six of respondent's witnesses, observed the complainant poking or making any physical contact with respondent. He had also initially stated that the complainant slapped him, but subsequently admitted that she did not, and withdrew the allegation.

The court noted a prior admonition for discourteous conduct.

In this matter, respondent repeatedly denied the scope of his wrongdoing and attempted to justify his actions. His claim that he only stated the complainant "acted like a bitch", instead of calling her one, is mere semantics. His claim that the use of the gender pejorative language was the result of the "atmosphere" in the Brooklyn Housing Court neither justifies nor excuses his actions. Respondent initially misrepresented to the Committee and the Referee that the complainant slapped or poked him, implying that her actions somehow justified his use of pejorative language.

Respondent never apologized directly to the complainant. His generalized public apology made at a May 2017 meeting of the Brooklyn Landlord and Tenant Bar -where a list compiled by female attorneys from Brooklyn Legal Services was circulated, containing sixty (60) specific references of inappropriate behavior by male attorneys, and which did not include the name of the complainant- is not an apology and is not proof of genuine remorse. Furthermore, the complainant's supervisor testified that respondent made an insincere apology to him immediately after the incident, which is further evidence of a lack of genuine remorse. Finally, respondent received an Admonition for prior similar behavior.

Result

respondent is suspended from the practice of law for a period of three months, and until further order of this Court, and respondent is directed to engage in counseling for a period of one year, as determined and monitored by the New York City Bar Association's Lawyer Assistance Program, which must include training in anger management and on diversity, inclusion, and elimination of bias, in addition to that mandated by New York State CLE requirements.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2020/12/the-new-york-appellate-division-for-the-first-judicial-department-the-petition-alleges-that-respondent-made-offensive-remark.html

Bar Discipline & Process | Permalink

Comments

Post a comment