Wednesday, February 17, 2021
Reciprocal disbarment has been ordered by the West Virginia Supreme Court of Appeals for an attorney's misconduct in his own divorce based on sanctions imposed in New York
There was a thirteen-day custody trial in the divorce/custody proceeding, during which Mr. Zappin and his now ex-wife presented witnesses and documentary evidence. At the conclusion of the trial, the New York court entered a 100-page opinion and order on February 29, 2016, granting his now ex-wife custody of the couple’s child, as well as a protective order against Mr. Zappin. The court made numerous factual findings concerning Mr. Zappin’s conduct throughout the proceedings, which findings established that Mr. Zappin
had repeatedly perpetrated acts of domestic violence against his wife; had testified falsely at a custody trial; had knowingly introduced falsified evidence during the proceedings in the form of altered text messages; had presented misleading testimony through his expert witnesses; had, beginning in April 2014, engaged in acts that repeatedly demonstrated disrespect for the court and counsel, by, inter alia, flouting the judicial directives of three judges (a judge of the District of Columbia Superior Court, the original matrimonial judge and the matrimonial judge who made these findings . . . ), setting up a fake website about the attorney for the child by registering her name as a domain name and posting derogatory messages about her on it, and baselessly filing a disciplinary complaint against a court-appointed psychiatric expert witness. Additionally, Supreme Court found that respondent had sent text messages to his wife, an attorney, threatening her with loss of her license to practice law and professional ruin; had made grossly offensive remarks during cell phone conversations with his then three-month-old son in which he baselessly accused his father-in-law of being a child sexual abuser who could harm the child; had engaged in frivolous and abusive litigation against his wife, her parents, and her attorneys; and had attempted to publicly defame the attorney for the child.
The New York Appellate Division for the First Judicial Department applied collateral estoppel effect to the above findings and ordered disbarment.
The court here rejected his challenges to the New York evidence and process
Mr. Zappin provides no legal authority to support his position that reciprocal discipline based upon a foreign state’s findings of fact using the preponderance of the evidence standard is unconstitutional under the West Virginia Constitution. Conversely, the LDB, relying on authority from other jurisdictions, argues that imposition of reciprocal discipline in West Virginia is appropriate even though the burden of proof for the disciplinary proceedings here is higher than the burden of proof in New York.
Reciprocal disbarment was imposed by the District of Columbia Court of Appeals.
Editor's note: the court cites a case I litigated in D.C. to support the above proposition of law. (Mike Frisch)