Nuisance Value

The New York Appellate Division for the First Judicial Department granted a motion to impose reciprocal discipline for a sanction imposed by the United States District Court for the Eastern District of New York

On February 4, 2020, the EDNY’s Committee on Grievances (COG) issued an Order to Show Cause and Statement of Charges (OSC) alleging violations of the following New York Rules of Professional Conduct (22 NYCRR 1200.0): rule 1.3; rule 1.4(a); rule 3.1(a); rule 3.2; rule 8.4(a); rule 8.4(d) and rule 8.4(h). These alleged violations related to respondent’s representation of plaintiffs in actions involving the Fair Debt Collection Practices Act (FDCPA). At all relevant times, respondent was “of counsel” to the law firm of M. Harvey Rephen & Associates, P.C. (Firm). The COG explained that the FDCPA claims brought by respondent arose from a process whereby a third party “credit repair specialist” would call a collection agency on behalf of a potential plaintiff and ask leading questions, all to elicit technical violations of the FDCPA. The caller would surreptitiously record the conversation and send the recording to the Firm, which would then file a lawsuit against the collection agency, seeking damages based on alleged violations of the FDCPA. Respondent, as attorney of record, would offer to settle the matter. If the collection agency was unwilling to settle, respondent would then claim that the witness was no longer available and would offer to dismiss the action as long as the defendant did not demand costs and fees.

The COG commented that respondent:

“has a pattern and practice of commencing meritless FDCPA lawsuits in the Eastern and Southern Districts of New York. [Respondent] has been admonished by several Judges in the Eastern District for his lack of diligence . . ., and for advancing frivolous arguments in motion practice . . . He has been suspected of commencing meritless FDCPA lawsuits for the sole purpose of obtaining ‘nuisance-value settlements” . . . and has been the subject of several sanctions motions.”

Sanction

With regard to the appropriate sanction, as a general rule, in reciprocal discipline matters, this Court gives significant weight to the sanction administered by the jurisdiction in which the charges were initially brought (see Matter of Milara, 194 AD3d 108 [1st Dept 2021]; Matter of Peters, 127 AD3d 103 [1st Dept 2015]). A three-year suspension is in accord with this Court’s precedent involving similar misconduct (see Savitt, 170 AD3d at 24; Moreno, 156 AD3d at 51; Davey, 111 AD3d at 207).

(Mike Frisch)