Friday, October 7, 2022
We frequently encounter attorneys sanctioned for conduct in their personal divorces as exemplified by a public censure of the New York Appellate Division for the First Judicial Department
The parties stipulate to the following facts. In 2011, following 14 years of marriage, respondent's wife commenced divorce proceedings against him in Supreme Court, New York County. A financial trial was conducted before a Special Referee over the course of 33 days from November 2013 to November 2014. Respondent was represented by counsel. In December 2014, after the trial concluded but before the Special Referee issued her decision, respondent filed a complaint against the Special Referee with the New York State Commission on Judicial Conduct (CJC). By letter dated February 24, 2015, the CJC advised respondent that its "jurisdiction [did] not extend to special referees." Respondent avers that when he received the CJC's letter he inferred at that time that a Special Referee was unaccountable under the law for any misconduct. On June 9, 2015, the Special Referee issued her decision on distribution of the marital assets. On September 1, 2015, a judgment of divorce was entered accordingly. Thereafter, respondent claims that he fell into a state of extreme despair. He suffered a heart attack, which resulted in a five day hospitalization in 2016, and he experienced panic attacks, which required another five day hospitalization in 2017. Respondent claims that he had never been hospitalized before for these issues. In 2017, a trial on postjudgment issues in respondent's divorce was assigned to the same Special Referee. Proceeding pro se, respondent moved to have the Special Referee removed. Supreme Court denied the motion. Thereafter, the Special Referee tried the matter over four days in 2018 and issued her decision in April 2019.
Respondent admits that he engaged in undignified and discourteous conduct before a tribunal, and in conduct prejudicial to the administration of justice, in violation of the Rules of Professional Conduct (22 NYCRR 1200.0) rules 3.3(f)(2) and 8.4(d) based on the following misconduct. In letters dated December 22, 2017, and January 29 and February 2, 2018 to the Hon. Deborah A. Kaplan, then-Administrative Judge of Supreme Court, New York County, Civil Term, respondent alleged judicial misconduct on the part of the Special Referee and stated, "I maintain that her Honor plays dirty pool." By another letter, dated March 14, 2018 to Justice Kaplan, respondent again claimed misconduct by the Special Referee, and stated, "[t]he hubris of the jurist in conducting herself so (right in front of my face even) standing alone is distressing. In light of my other letters, I submit: an alarm should be sounded, please." By letter dated January 17, 2019 to Chief Administrative Judge Lawrence K. Marks, respondent again alleged misconduct on the Special Referee's part, writing that the "Special Referee is corrupt and a liar; some judicial officers fix tickets; [this] Special Referee fixes matrimonial actions, where lots more is at stake, obviously." Respondent then alleged that the Special Referee fixed his divorce to suit his ex-wife's counsel. By follow-up letter dated January 28, 2019 to Judge Marks, respondent claimed that this "Special Referee is judicially unfit, a bully, who, in cahoots with [his wife and her counsel], leveraged her power under the law to degrade me repeatedly." By yet another letter, dated February 21, 2019 to Judge Marks, respondent also called the Special Referee "corrupt, a cheater and biased." Respondent sent copies of all three of these letters to all the Justices in the Supreme Court in New York County, Civil Term. Respondent also admits that he engaged in undignified and discourteous conduct when after he failed to timely appear for a scheduled hearing before the Special Referee he repeatedly accused her of interrupting him, and when asked to identify the Supreme Court Justice that purportedly caused him to be late he said he could not recall the Justice before whom he had just appeared.
Respondent has no other discipline in more than 30 years of practice and expressed remorse for the misconduct. (Mike Frisch)