Discipline Increased

The New York Appellate Division for the First Judicial Department increased a sanction as reciprocal discipline for an order of the Executive Office for Immigration Review

On December 17, 2018, Disciplinary Counsel for the United States Department of Justice Executive Office for Immigration Review (EOIR) filed a Notice of Intent to Discipline (NID) charging respondent with (1) engaging in contumelious or otherwise obnoxious conduct in violation of 8 Code of Federal Regulations (CFR) 1003.102(g) and (2) violating the standards of conduct regarding civility, decorum, and professionalism expected of practitioners appearing before the Immigration Court in violation of 8 CFR 1003.102. The NID alleged that respondent engaged in professional misconduct while appearing before a New York immigration judge at a master calendar hearing on September 21, 2018. During the hearing, respondent, in a raised voice, called a legal assistant racist and antisemitic and accused her of targeting him, according to the NID.

On August 30, 2021, EOIR issued an amended order suspending respondent from practicing before the BIA, DHS, and the Immigration Courts for six months based on findings of professional misconduct. In the amended order, Immigration Judge Steven Morley, the adjudicating official appointed to preside over the disciplinary matter, sustained the first charge that respondent engaged in contumelious or otherwise obnoxious conduct in violation of 8 CFR 1003.102(g). Judge Morley found that respondent’s accusations against the legal assistant were unfounded, abusive, and humiliating, noting that respondent admitted that he did not have proof to substantiate his claims of antisemitism and that publicly accusing a court employee of antisemitism “without objective foundation and only upon subjective belief represents an imminent threat to the administration of justice.” Judge Morley dismissed the second charge that respondent generally violated standards of conduct in violation of 8 CFR 1003.102, noting that the “charge [was] not factually distinct from 8 CFR 1003.102(g), but appears to represent a more expansive charge related to his conduct.”

In determining that a six-month suspension was the appropriate sanction, Judge Morley noted multiple aggravating factors, “the most significant” of which was respondent’s disciplinary history. On March 13, 2007, the Attorney Grievance Committee (AGC) for the First Judicial Department issued respondent a letter of admonition for neglecting several client matters. On January 28, 2009, EOIR Disciplinary Counsel informally admonished respondent for frivolous behavior and making false statements in six immigration cases. On May 10, 2010, EOIR Disciplinary Counsel again informally admonished respondent for frivolous behavior and other violations in four immigration cases. On October 14, 2010, the United States Court of Appeals for the Second Circuit (Second Circuit) suspended respondent for three months for neglecting client matters, finding that he defaulted in roughly 125 out of 190 cases between 2005 and 2008. On July 12, 2011, EOIR imposed a non-identical reciprocal discipline on respondent based on the Second Circuit’s October 14, 2010 order, suspending him for six months. On December 1, 2011, the First Judicial 2011 order, suspending him for six months. On October 28, 2010, in a separate disciplinary matter, the First Judicial Department publicly censured respondent for neglecting client matters in nine immigration cases. On April 12, 2016, Disciplinary Counsel for EOIR admonished respondent for speaking in a “raised voice” to a legal assistant in the Memphis Immigration Court and “warned [him] about the need to act respectfully towards EOIR employees,” cautioning him that “future misconduct . . . will result in formal disciplinary proceedings being filed against him.”

Judge Morley found respondent’s 2016 admonishment “extremely relevant” given that respondent was charged with violating the same regulation for raising his voice and acting uncivilly toward Immigration Court administrative staff. Judge Morley noted that because respondent was previously found to have violated the same regulation (8 CFR 1003.102[g]), was warned about the consequences of repeating that conduct, and “did so temporally proximate to the Memphis infraction,” a public censure was an inadequate sanction, and a suspension was warranted instead.

In mitigation, Judge Morley found that respondent expressed remorse for his actions, testified that he would act more respectfully in the future, and had several letters filed on his behalf attesting to his professionalism and good character.

Respondent appealed the amended order, and on January 12, 2024, the BIA affirmed the amended order and issued a final order suspending respondent for six months effective January 27, 2024.

Sanction

We agree with the AGC that circumstances of this case call for an upward departure to an 18-month suspension. In making this determination, we note respondent’s significant disciplinary history, which includes his admonishment in 2016 for virtually the same misconduct that is at issue here. Coupled with respondent’s unauthorized practice of law while under suspension and his recent problematic conduct toward an attorney for the AGC, an upward departure is warranted. That respondent be ordered to participate in an anger management program for one year is also appropriate given that respondent admitted that he has an anger management problem, indicated that he is seeking a referral for an anger management specialist through LAP, and is unopposed to participation in such a program. This Court declines to impose respondent’s suspension retroactively given that an interim suspension was not imposed in this matter, there was no procedural delay by the AGC or this Court in imposing discipline, and respondent did not indicate that he voluntarily ceased practicing law under his New York license in anticipation of this reciprocal disciplinary proceeding (cf. Matter of Peters, 127 AD3d 103 [1st Dept 2015]; Matter of Filosa, 112 AD3d 162 [1st Dept 2013]; Matter of Gilly, 110 AD3d 164 [1st Dept 2013]).

(Mike Frisch)