“Racist, Sexist, Homophobic, Offensive Epithets” Gets A Three-Month Suspension
A three-month suspension (triple the sanction proposed by a hearing panel) was imposed by the New York Appellate Division for the First Judicial Department.
Respondent was charged with having made patently offensive racial, ethnic, homophobic, sexist, and other derogatory remarks to attorneys, in violation of rule 8.4(h) of the Rules of Professional Conduct (Rules); insulting an administrative law judge in a public forum, and being disruptive inside of and/or in the vicinity of hearing rooms, in violation of rule 3.3(f)(2); and improperly importuning court clerks to recalendar cases even when told it could not be done, in violation of rule 8.4(b) and (d). The evidence cited by the Referee and confirmed by the Hearing Panel as upholding these charges included testimony of three TVB Administrative Law Judges: one who received complaints of disruptive or explosive conduct on respondent’s part over the years and personally witnessed such behavior on several occasions; one who was called “a disgrace” by respondent in an open hearing room during or after a contentious hearing; and one who, after reprimanding respondent for talking in the courtroom, experienced him as irate, rude, loud, and combative. In addition, three attorneys who practiced traffic law at the Manhattan North TVB testified that respondent had for years cursed and made obscene, racist comments, and uttered profanities about ethnicity and homosexuality within the public areas of the TVB; he had also threatened one of the attorneys on more than one occasion…
The Hearing Panel disaffirmed the Referee’s recommendation of a “public sanction,” which it understood to be a recommendation of a public censure. It noted the regularity over the years of respondent’s public remarks to other attorneys that were profane, racist, sexist, homophobic, obscene or threatening, his disrespect to and for the two Administrative Law Judges, and that he was also found to have improperly importuned TVB clerks to engage in acts that he was told could not be done. The Hearing Panel recommended a one-month suspension. The DDC seeks an order confirming the Hearing Panel’s findings of fact and conclusions of law, and argues for a just and appropriate sanction.
The court on sanction
Even assuming, as the Referee found, that it is true that inappropriate language by attorneys is commonplace at the TVB, we fail to see how this constitutes mitigation or otherwise excuses respondent’s ongoing and public inappropriate behavior. Respondent has shown inexcusable disrespect in open court to two Administrative Law Judges. He has spewed racist, sexist, homophobic and offensive epithets against other attorneys that any reasonable person, let alone a reasonable attorney, would know are simply unacceptable in public discourse. The “policy underlying the rules governing professional responsibility [ ] seeks to establish a minimum level of conduct below which no lawyer can fall without being subject to disciplinary action'” (In re Holtzman, 78 NY2d 184, 192 [1991] [quoting from Code of Professional Responsibility, Preliminary Statement], cert denied, 502 US 1009 [1991]). Respondent’s conduct should not and will not be tolerated. Furthermore, we find it of concern that he attempted to undermine the functioning of the TVB by his repeated requests of the clerks to recalendar cases, even after being informed by more than one clerk that what he was asking would violate TVB policy.
Accordingly, the Committee’s motion is granted to the extent of confirming the Hearing Panel’s findings of facts and conclusions of law. We disaffirm the Hearing Panel’s recommendation of a one-month suspension, and direct that respondent should be suspended for a period of three months, and until further order of this Court, and respondent should continue anger management treatment for a period of one year, monitored by the New York City Bar Association’s Lawyer Assistance Program .