An Unmasked AUSA

There probably are not many attorneys admitted in Mississippi, New Hampshire, Florida, New York  and the District of Columbia.

Such a combination makes for a lot of bar dues and a heightened potential for reciprocal discipline.

The D. C. Board on Professional Responsibility has just posted a reciprocal public censure ordered in New Hampshire based on a private sanction imposed in Mississippi.

On September 25, 2023, the [Attorney Discipline Office] filed with the New Hampshire Supreme Court a certified copy of the August 1, 2023 opinion and judgment of the Supreme Court of Mississippi Committee on Professional Responsibility, which privately reprimanded Attorney Theodore M. Cooperstein following his self-report that he had on three occasions misrepresented his vaccination status to a federal judge in Mississippi during the summer of 2021. At the time of those misrepresentations, the federal court in Mississippi had a standing COVID-mitigation order that required unvaccinated court participants to wear a mask. In the correspondence transmitting the filing, the ADO contended that Attorney Cooperstein’s misconduct warrants substantially different discipline in New Hampshire. In particular, the ADO asserted that the Supreme Court should impose a six-month suspension from the practice of law in New Hampshire, with the entire suspension stayed on the condition that Attorney Cooperstein engage in no further misconduct for one year.

Granite State sanction

After having reviewed the opinion and judgment of the Supreme Court of Mississippi Committee on Professional Responsibility, the ADO’s correspondence, and the response of Attorney Cooperstein to the Court’s order of notice, the Court concluded that neither of the first two factors set forth in Rule 37(12)(d) was present. The Court thus focused on the third factor and agreed with the ADO that Attorney Cooperstein’s misconduct – three instances of a false representation to a tribunal – was sufficiently serious to warrant discipline greater than a reprimand. The Court was persuaded however by the mitigating factors identified by Attorney Cooperstein and by the ADO that a suspension was not warranted in this case. Those mitigating factors, many of which were noted in the New York disciplinary determination, include Attorney Cooperstein’s acknowledgement of misconduct, the absence of a prior disciplinary record, the absence of a selfish motive, his self-report of the misconduct, his expression of regret and apology to the federal court in Mississippi and to his colleagues in the United States Attorney’s Office for his lack of candor and poor judgment, and his cooperation with the ADO.

Considering the nature and extent of Attorney Cooperstein’s misconduct, the Court determined that a public censure was appropriate discipline.

A related story from Prison Legal News

On July 7, 2022, a federal judge for the Southern District of Mississippi levied a $6,000 sanction against a federal prosecutor for lying about his COVID-19 vaccination status.

When Assistant U.S. Attorney Theodore “Ted” Cooperstein was quizzed on three appearances before Judge Carlton W. Reeves on June 22, June 29, and July 8, 2021, he answered each time that he was fully vaccinated. But when asked again on October 6, 2021, Cooperstein told Reeves, “I’m not comfortable discussing my personal medical history, Your Honor, but I am wearing my mask per the Court’s rules.”

For the safety of litigants, the Court’s Board of Judges issued a Special Order addressing the pandemic on March 13, 2020, adopting new variations over the following months based upon then-existing conditions, eventually requiring all those appearing in the Court to be vaccinated or wear a mask. After Reeves demanded Cooperstein’s answer, the prosecutor admitted:

“Sir, I am not vaccinated.”

Though he insisted he had “an exemption request pending with my employer,” Reeves ordered Cooperstein three weeks later to show cause “why he should not be sanctioned for making one or more misrepresentations to the Court.” Reeves also directed U.S. Attorney Darren J. LaMarca to attend the hearing, along with his First Assistant, Criminal Chief, Ethics Officer, and Professional Responsibility Officer.

LaMarca spoke for all but demurred when queried about appropriate sanctions for his colleague, explaining that Department of Justice superiors advised him to offer no comment. Cooperstein’s counsel offered an apology for his client’s lack of candor, attributing the lies to “poor judgment” and requesting that any sanctions be modest.

Reeves was not persuaded.

“At times during this pandemic, commensurate with the spread of the virus, this Court has required all persons present in Courtroom 5B to wear a face covering or affirmatively represent that they are vaccinated against COVID-19,” the judge said. “The Court has asked this of witnesses, attorneys, participants, the public, and Court staff alike” — including Cooperstein, who thrice represented he was inoculated against the disease.

“As it turns out, these representations were false,” Reeves continued.

“Only lawyers are given the keys to the courthouse to seek justice, to do justice, and vindicate the rights of others,” Reeves said. “Mr. Cooperstein is no ordinary lawyer. He is an Assistant United States Attorney,” so the Court “expect[s] the best of him and his colleagues, privileged as they are to represent the interests of the United States of America.”

“In these instances, however, Mr. Cooperstein fell short of those expectations,” Reeves declared. “Mr. Cooperstein’s representations were false. They were lies. This conduct meets prior cases’ definition of ‘bad faith.’ And it is conduct meriting sanctions.”

The Court imposed “a $6,000 penalty — comprised of $1,500 for the first lie, $2,000 for the second, and $2,500 for the third.” It required Cooperstein to pay $2,500 within 30 days of its order and the remainder within one year. The sanction also included a requirement that Cooperstein attend the state Bar’s James O. Dukes Professionalism Program, a half-day course conducted for entering law students at the University of Mississippi and Mississippi College law schools. See: United States v. Bell, 2022 U.S. Dist. LEXIS 119578 (S.D. Miss.). 

(Mike Frisch)