Immediate Suspension In Reciprocal Matter

The New York Appellate Division for the Second Judicial Department imposed reciprocal discipline  and immediate suspension based on sanctions ordered by the United States District Court for the Southern District of New York.

In an action in the Southern District, an issue arose regarding the attorney’s explanation for a missed conference

On July 26, 2019, Judge Seibel ordered the respondent, under penalty of contempt, to furnish a copy of his grandfather’s death certificate to document his claim that he could not attend the April 12, 2019 conference, nor provide timely notice to the court or his adversary, due to the death in his family. In response, on August 12, 2019, the respondent submitted another declaration, stating once again that he believed his prior correspondence was sufficient, and that he should not be required to provide his grandfather’s death certificate because that was a “personal matter.”

On August 19, 2019, Judge Seibel responded, acknowledging the personal nature of a death in the family; however, the issue of the respondent’s candor before the court was professional in nature. Judge Seibel offered the respondent the opportunity to submit the death certificate directly to her chambers to maintain privacy. In the event the respondent did not provide the requested documentation by August 26, 2019, he would be held in contempt and subject to sanctions, including monetary sanctions and referral to the Committee on Grievances.

Rather than provide the death certificate, on August 26, 2019, the respondent submitted another declaration, in which he contended that he was not in contempt because the court’s request for the death certificate was unlawful, as it “likely constitutes a usurpation of judicial authority or a breach of judicial decorum.” He further contended that his prior submissions complied with the court’s orders, there was no basis to impose monetary sanctions, and Judge Seibel’s accommodation to maintain the privacy of the death certificate was insufficient.

In a September 27, 2019 endorsement on the August 26, 2019 declaration, Judge Seibel noted, inter alia, that the respondent had repeatedly refused to provide his grandfather’s death certificate, even after it was made clear to him that his declarations were insufficient and the court offered to accept the death certificate directly, without a public filing, to maintain privacy. Further, the respondent did not allege or show an inability to comply with the court’s directives. As a result, Judge Seibel declared the respondent to be in contempt of court and ordered that if he failed to provide the requested documentation by October 2, 2019, he would be subject to a sanction of $100
each business day pending his compliance. In addition, the court warned that additional or different sanctions would be considered in the event that sanction was insufficient to ensure compliance.

Ultimately, it was confirmed that the date of death was April 9 with interment that same day.

Judge Siebel declined to vacate the contempt order.

In an unrelated Sothern District matter, he was directed to show cause

In response, the respondent submitted a declaration dated September 25, 2020. In describing himself, he stated that he became interested in photography at an early age. Ultimately, he became a member of the New York Press Photographers Association. Through the contacts he developed within the photography community, he learned that photographers’ work often was “stolen,” and he recognized a need for them to get paid for their work. He decided to pursue a career in copyright law, and shortly after he was admitted to practice, he opened his law firm, LLF, basically devoting himself to helping photographers obtain compensation from major media companies and others who used the photographers’ work without consent or license.

The respondent stated that he opened his firm with no prior experience or training in running a legal practice. He took on many cases and pursued a large number of cases simultaneously. The venue for his practice primarily was federal court. He could take on many cases since many of them settled early, typically in the “low thousands of dollars.” The respondent would take a contingency fee, since the high cost of litigation and the often limited amount of recovery made it financially infeasible for individual artists to seek relief any other way.

According to the respondent, he represented more than 1,200 clients in at least 2,500 federal actions around the country. His firm is often “stretched thin,” facing the “constant challenges of an unpredictable and geographically scattered caseload.” As he put it, high-volume litigation is “necessary to enforce the rights of content creators,” but it comes with “increased risk of administrative failure.”

The respondent advised that he had taken steps to improve his practice. He retained counsel to assist him; counsel spent a great deal of time improving the management of LLF. To that end, for example, at counsel’s direction, the respondent bought practice management software. The respondent realized that he could not accept as many clients as he had in the past, and reduced his client intake by almost 50%.

In addition, the respondent stated that he had been sanctioned “numerous” times, and that caused him to “look inward.” He began weekly counseling sessions with a psychologist, and came to realize that he rationalized his willingness to have “small” mistakes in his court filings based on the fact that he was doing “good” for his clients. He stated that he now understood that the statements he makes to a court must be accurate, and factual inaccuracies or errors must be promptly corrected. The respondent emphasized that he offered the foregoing by way of explanation, and not excuse.

He had been sanctioned numerous times by numerous courts.

Reciprocal discipline

Under the circumstances of this case, we conclude that an immediate suspension is warranted. The respondent’s misconduct in litigation has at times endangered his clients’ prospects of recovery, and put his adversaries to needless expense. He has shown disrespect for the courts, as is demonstrated by his admitted conduct before Judge Seibel in the Berger case. His actions in that case included multiple misrepresentations, defiance of her orders, and explicit questioning of her authority as she attempted to probe the truth of his asserted reason for failure to appear at a conference.

(Mike Frisch)