Friday, November 19, 2021

Reduced Reciprocal Discipline

Two incidents that had led to findings of misconduct and a four-month suspension in New York drew a public censure from the New Jersey Supreme Court.

Unlike its neighbor, the Disciplinary Review Board noted the Garden State's normative sanctions for comparable conduct.

Despite the four-month suspension, with conditions, imposed on respondent in New York, the OAE recommended a censure, contending that New Jersey attorneys who display disrespectful or insulting conduct toward persons involved in the legal process; threaten to present, or present, criminal charges to obtain an unfair advantage in a civil matter; or engage in conduct intended to disrupt a tribunal are subject to a broad spectrum of discipline, ranging from an admonition to a term of suspension. Finally, the OAE argued that a reprimand is the usual discipline for violations of RPC 4.1(a)(1) and RPC 8.4(c), absent other serious ethics infractions and history.

The DRB majority

Although we considered the imposition of a suspension, we found that the overwhelming mitigation presented by respondent, including his letters of reference, good deeds, and charitable ventures, to be admirable. On balance, based on respondent’s conduct, and considering his lack of disciplinary history and the substantial mitigation presented, we determine that a censure is the quantum of discipline necessary to protect the public and preserve confidence in the bar.

Incident one involved an arbitration being conducted in his firm's offices

During D’Angelo’s cross-examination of claimant Cutter at the arbitration hearing, respondent entered the room and began taking photographs. He then stated “[t]his will be in the newspaper when I put this in there after we kick your asses. You should be ashamed of yourself for kicking people out of a building and you have to live with yourself.”

The second incident related to a website 

By letter dated September 7, 2016, respondent accused James Dawson of creating a website to disseminate false and defamatory statements about the officers and employees of respondent’s client, Lalezarian Properties, LLC (Lalezarian), and its rental properties.

In a telephone conversation with Dawson

Later that day, on September 13, 2016, respondent called Dawson, who recorded the conversation. Respondent told Dawson that respondent had a copy of a protective order that Dawson’s former girlfriend had obtained against him; that the former girlfriend was cooperating with respondent; and that, if Dawson refused to remove the website, he would be liable for millions of dollars because “it’s strict liability in New York law when you defame someone. Each day, each day is another offense.” When Dawson inquired about the alleged protective order, respondent replied that he could have a copy of respondent’s entire file after he took down the website. In turn, Dawson denied that he owned the website.

After the conversation became heated, respondent told Dawson “I know you’re not that bright, right, because you’re gonna be bankrupt soon, even though you’re unemployed, but you have no idea what you’re getting into. You have no idea what you stepped into.” Respondent then appeared to be directing another attorney in his office to “start the lawsuit . . . I need him arrested.” When Dawson asked for an explanation for the purported arrest, respondent replied, “[o]h, you have no idea what you just got into, buddy, you have no idea. Welcome to my world. Now you’re my bitch.” Respondent then told Dawson that he would be arrested for violating federal law for creating the website.

Mitigation

At the mitigation hearing, respondent testified that he became angry and “riled up” when Dawson told him to “shut the fuck up for a minute” at the beginning of the call. Respondent admitted that it was the “perfect storm of everything wrong,” and that it was “the worst conversation I’ve ever had in my life.” He further admitted that he had “completely lost control” and that, following his conversation with Dawson, he consulted his ethics attorney.

Respondent testified that, at the time of the incident with Dawson, he had a four-month-old baby for whom he was caring at night, was working six days per week, and was suffering from exhaustion. Respondent conceded that the call was “horrible” and “disgusting,” and asserted that he regretted his conduct. He stated “[n]ot only was it wrong, but I am apologetic, and remorseful, and embarrassed. And I have trouble living with myself, having done so knowing that one day—because when you google my name you’d see this up there. That one day my kids may even see that I acted in such a way which is beyond horrible. No human should treat another human with those words ever.”

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2021/11/two-incidents-that-had-led-to-findings-of-misconduct-and-a-four-month-suspension-in-new-york-drew-a-public-censure-from-the-n.html

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