Damn The Defiant!

An attorney has been suspended by the New York Appellate Division for the First Judicial Department for his inadequate response to a bar investigation

The Committee began its investigation into respondent when it received notice of three separate acts of contempt and/or contumacious courtroom behavior allegedly committed by respondent. The first investigation was opened following denial to respondent of pro hac vice admission by the Honorable Judge Brian Cogan of the United States District Court for the Eastern District of New York. In his decision denying respondent pro hac vice admission, Judge Cogan made specific mention of respondent’s defiance and lack of respect for the court. The second investigation was opened upon respondent being held in contempt of court during trial before the Honorable David A. Morris of Suffolk County Court. The third investigation was opened upon receipt by the Committee of a CD of proceedings in which respondent appeared before the Honorable Michelle D. Schreiber of New York County Housing Court. The CDs revealed that, during the course of a four-day trial before Judge Schreiber, respondent refused to refer to the Judge by her title and engaged in other forms of defiance and blatant disrespect for the court.

The problem came about during a deposition noticed in the disciplinary investigation

Respondent’s deposition resumed on May 3, 2016. During the course of the deposition, the Committee inquired about the issues surrounding his Santander Bank account, based on respondent’s attachment of the bank’s letter to his prior email communication with the Committee. Ultimately, the Committee requested that respondent produce all records from the account dating back to 2011, as well as his bookkeeping records dating back to 2011. The Committee further requested that respondent produce documents with respect to the other matters under investigation. Respondent replied, on the record at the deposition, that the Committee should obtain any items it sought that were public record on its own and that it should serve him with a judicial subpoena for the bank records and bookkeeping records.

Although not required to do so, the Committee served respondent with a judicial subpoena on May 12, 2016, seeking his bookkeeping records and the records for the Santander Bank account. The subpoena was returnable on May 19, 2016. According to the affidavit of service, a Committee investigator effectuated service by going to respondent’s office address at 40 Wall Street, 28th Floor where the investigator was told by “Zoe” that respondent was not in, but she would accept the hand delivery. The next day, on May 13, 2016, the investigator mailed [*3]a copy of the subpoena via first class mail and a second copy by certified mail, return receipt requested, to respondent at the same address. Respondent did not produce any of the records by May 19, 2016.

On May 31, 2016 the same staff attorney sent respondent an email informing him he was in default, giving him an extension until June 3, 2016, and warning that failure to comply exposed him to suspension. About an hour later, respondent sent an email in reply stating, inter alia, that he was never served, and he wanted to see the affidavit of service; and questioning the staff attorney’s fitness to practice law in New York State. On June 1, 2016, the staff attorney sent an email including a pdf attachment of the affidavit of service and reiterating the extension of time to comply. The staff attorney also reminded respondent that his failure to comply with a lawful demand by the Committee would expose him to suspension. Respondent did not provide the requested records by the extended June 3, 2016 date, nor has he provided them to the Committee since.

As a consequence

Here, respondent was properly served a subpoena by the Committee in the course of an open investigation but refused to comply, even after being given an extension and being warned of the consequences of failing to do so. Although respondent has contended that he was improperly served, his argument is without merit. Rather, the record before us indicates that respondent was properly served under CPLR 2303(a) and 308(2). In light of the proper service of the subpoena and the repeated warnings that respondent’s failure to comply would result in suspension, his failure to produce his bank account and bookkeeping records must be viewed as willful.

Accordingly, the Committee’s motion is granted and respondent is suspended from the practice of law pursuant to 22 NYCRR 603.4(e)(1)(i), effective immediately, and until further order of this Court.

(Mike Frisch)