Not Even Close

The New York Appellate Division for the Second Judicial Department imposed a three-year suspension as reciprocal discipline based on findings of misconduct in California. The court affirmed a referee’s conclusion that the lawyer had not “come close” to establishing an infirmity in the California bar case:

The respondent’s testimony consisted of a series of arguments, while referencing various state court documents. His initial argument addressed the burden of proof. The respondent maintained that this Court had to apply a clear and convincing standard since that was the standard applied in the California proceedings. The respondent contended that the evidence failed to support the findings that he: (1) planned and arranged for a sham marriage to circumvent a court order, while simultaneously prosecuting an appeal to overturn the same order, and (2) sought to mislead or deceive any court by failing to inform the court of the marriage. He maintained that he had a nonfrivolous argument that the Weisses could consent to the marriage in their capacity as temporary guardians because they retained authority to consent by virtue of the stay granted, which was a blanket stay. The respondent maintained that he reasonably believed that the marriage did not moot the appeal. Hence, he contended that the evidence was insufficient to find that he intended to deceive the appellate court.

With regard to the imposition of discipline, the respondent argued that any discipline imposed should be made retroactive to the effective date of his California suspension, and that any decision imposing discipline should not contain any recitation of the facts because the order of the Supreme Court of the State of California did not contain any recitation, and the Opinion on Review of the State Bar Court was designated “Public Matter – Not Designated for Publication.” The respondent acknowledged that the decision was available to any member of the public upon request. The Grievance Committee pointed out that the decision of the Hearing Department of the State Bar Court, which was the initial decision and included a complete recitation of the facts, is published on the internet.

The Special Referee concluded that the respondent did not “come close” to meeting his burden of proof on his infirmity of proof defense. The Special Referee found nothing that persuaded him that the respondent did not egregiously violate the basic ethical obligation of an attorney to uphold the integrity of the legal system, and that the respondent’s concern for the welfare of a young girl “did not justify in any way conduct that involved circumventing a court order, ratifying a plan to arrange her marriage in a foreign country and withholding this clearly critical information from the court.” The respondent’s conduct in bringing the court’s attention to “two new events,” while omitting mention of the marriage, the Special Referee found was “clearly pure artifice.”

The underlying case involved the lawyer’s representation of a child’s maternal grandparents in a custody dispute with the child’s father after the mother had died. (Mike Frisch)