Failure To Disclose Leads To Revocation

The New York Appellate Division for the Second Judicial Department revoked an attorney’s license for a failure to disclose a pending disciplinary matter when he waived in from Texas

Question 33 on the application for admission to the New York Bar reads: “State whether you have ever been a complainant, party or witness to or otherwise involved in any civil or criminal action, proceeding or investigation not covered by answers to the above questions 28-32.” The respondent answered that question as follows: “Yes, I am an ADA Plaintiff in a civil case against an Urgent Care Center in San Antonio. The center does not provide services in accordance with the Americans with Disabilities Act. The case is filed in Federal Court in San Antonio, under 1:16-CV-1070. The case is still in litigation.” The respondent failed to disclose in his answer to Question 33 that, at the time, he was the subject of an ongoing investigation into his professional misconduct by the Disciplinary Committee of the United States District Court for the Western District of Texas.

Discipline was later imposed in Texas

By omnibus order issued by United States District Judge David Alan Ezra of the United States District Court for the Western District of Texas, San Antonio Division, filed July 11, 2017, the respondent was suspended from the practice of law before that court for three years. The respondent failed to report that suspension, as required by Rules for Attorney Disciplinary Matters (22 NYCRR) § 1240.13(d).

He was suspended for three years as reciprocal discipline 

By opinion and order of this Court dated August 21, 2019, in a prior separate disciplinary proceeding commenced under Appellate Division Docket No. 2018-15008, the respondent was suspended from the practice of law for three years, commencing September 20, 2019, based on the disciplinary action taken against him by the United States District Court for the Western District of Texas, San Antonio Division (see Matter of Rosales, 176 AD3d 107). The failure by the respondent to disclose the Texas disciplinary proceedings is at the heart of this proceeding.

Under the totality of the circumstances, we conclude that the appropriate sanction is revocation.

KXAN reported on the reciprocal matter

Attorney Omar Rosales, who filed hundreds of Americans with Disabilities Act lawsuits against Austin businesses on behalf a single client and was suspended from practicing in the Federal Western District of Texas for three years, has been suspended in the State of New York as well, according to an August 21 order.

The New York suspension will last three years. It is a “reciprocal” disciplinary measure resulting from misconduct in the Texas ADA cases, according to the New York order.

This suspension is the latest of several measures, including sanctions and lawsuits, taken against Rosales since he began filing ADA cases in Central Texas in 2015.

Rosales’ attorney, Gaines West, said he couldn’t’ comment on the New York decision until he read the order. However, he said, the order stems from a local federal order that forms the basis of a State Bar lawsuit against Rosales that is on appeal with the Third Court of Appeals.

“I am confident that the Third Court of Appeals will apply the law properly in that appeal and dismiss the claims against my client,” West said in an emailed statement.

On behalf of a single client named John Deutsch, Rosales filed over 380 federal cases alleging technical violations of ADA law in 2015 and 2016. The violations were focused on parking lot issues, such as improperly sized handicap parking spaces, lack of signage, ramp inclines and the size of front-door thresholds, according to hundreds of cases reviewed by KXAN.

Each property and business owner said they had never seen Deutsch or Rosales prior to receiving a lawsuit in the mail. In two cases, KXAN obtained demand letters accompanying the lawsuits saying the businesses could fix the violations and settle the suit for $7,000, which was negotiable.

KXAN first reported on the serial litigation in 2016. At that time, Rosales was fighting several cases against Jim Harrington, a prominent civil rights attorney and founder of the Texas Civil Rights Project. Harrington opted to defend a handful of the ADA cases pro bono.

Rosales defended his actions in the past, saying the lawsuits he filed were meant to correct violations and help the disabled community.

Harrington said Rosales’ lawsuits would have a negative effect and undermine ADA law, and Rosales needed to be stopped. In six of the cases defended by Harrington, Rosales was ultimately sanctioned about $175,000 in federal district court for misconduct, fabricating an email, disparaging Harrington and acting in bad faith, according to a 2017 order.

A federal judge found Rosales had filed a frivolous restraining order and criminal complaint alleging Harrington made a terroristic threat. Rosales also made dozens of false and inflammatory statements about Harrington in multiple court pleadings, according to federal court filings and orders.

Rosales was sanctioned an additional $60,500 by the 5th U.S. Circuit Court of Appeals for filing a frivolous appeal to the sanctions.

Following the parking lot ADA lawsuits, Rosales began sending letters to healthcare providers throughout the state demanding $2,000 to settle unfiled lawsuits that alleged the providers’ websites were not ADA compliant, according to records obtained by KXAN and court filings.

The State Bar’s Commission for Lawyer Discipline sued Rosales in September of 2017 in Travis County District Court for misconduct related to the website ADA letters. The district court dismissed the disciplinary commission’s case, handing Rosales a win in February of 2018. However, the disciplinary commission appealed to the Third Court of Appeals, the trial court’s decision was reversed and the case was remanded back down to district court to be continued, said Claire Reynolds, public affairs counsel with the Office of the Chief Disciplinary Counsel.

Adding another wrinkle to that case: the Third Court of Appeals found the Texas Citizens Participation Act applied to attorney disciplinary actions. (Rosales initially got the case dismissed through the TCPA.) The disciplinary counsel is filing a petition for review with the Texas Supreme Court arguing TCPA should not apply to these disciplinary cases, Reynolds said.

West said the appeals court had “correctly determined’ that the TCPA should apply to attorney discipline.

The disciplinary commission sued Rosales a second time in April of 2018 alleging other misconduct related to his ADA work. That case is also still playing out in court. Rosales filed a motion to have the second lawsuit dismissed, which was denied; now, he is appealing that denial to the Third Court of Appeals, Reynolds said.

(Mike Frisch)