Lot (Owners) Wife
The New York Appellate Division for the First Judicial Department reduced a Maine three-year term of suspension to one-year as reciprocal discipline
Respondent, who had practiced criminal defense in New York prior to moving to Maine in 2020, was admitted to the Maine bar in May 2022 and was registered with the Maine Commission on Indigent Legal Services (MCILS). Respondent’s discipline in Maine stems from a series of actions he took over an approximately six-month period.
First, in September 2022, respondent went to a car lot with his criminal client, J.C., to retrieve her car which had been impounded as a possible forfeiture. While the hold on the vehicle was released, respondent and his client had been informed that the vehicle would not be returned until the outstanding storage fees had been paid. Nevertheless, respondent and J.C. went to the impound lot with intent of retrieving the vehicle without paying the storage fees. Respondent felt that the storage fee of $75 per day was unreasonable and that the state should pay the fee incurred while the State determined whether to seek forfeiture of the vehicle. When respondent and J.C. arrived at the lot, they proceeded directly to J.C.’s car and tried to start it. They did not first engage the lot owners to ask about the car or the fees. Because the car’s battery was dead, respondent and J.C. attempted to charge the battery using respondent’s car. The lot owner’s wife approached respondent and J.C. and asked them to leave the property. Respondent refused and indicated that he would not leave without his client’s car.
The lot owner’s wife called 911 and attempted to stop both respondent’s and J.C.’s cars from leaving by blocking the way using a backhoe. While waiting for the police to arrive, respondent moved his car closer to J.C.’s vehicle and bumped into the lot owner with his car.
Because of his conduct at the impound lot, respondent was summonsed and charged with assault, reckless conduct, criminal trespass, and attempted theft. J.C., who was under bail conditions that included no new criminal conduct, was also charged. The criminal case against respondent has not yet been tried.
In the disciplinary proceeding that led to his suspension, respondent asserted that the criminal charges against him stemming from the incident in the impound lot were brought in retaliation for an August 2022 email that he sent to an Assistant District Attorney (ADA) C.R. threatening to file a federal lawsuit on behalf of another client who was charged with criminal trespass on town property. Specifically, respondent’s client, who had been served with a “No Trespass Notice” forbidding his presence at a specific location, was charged with trespass after he appeared to vote at his lawful polling place. The disciplinary judge found respondent’s retaliation claim to be without merit.
In December 2022, at J.C.’s arraignment, a pre-recorded video was played for the defendants present in court. The video discussed the criminal process and explained their rights. Respondent stood up and addressed those awaiting arraignment and stated that the video was propaganda, that it was purposefully misleading, and that the criminal system is corrupt. Respondent offered to discuss it with anyone present at the proceeding. After respondent was charged in the car lot incident, respondent filed a motion to withdraw as defense counsel in cases where he had been appointed as a member MCILS. Respondent claimed a possible conflict in that it could be perceived, due to his criminal case, that he would curry favor with the district attorney’s office to positively impact his criminal case at the expense of his clients’ cases. The court granted the motion and new counsel was appointed.
Nonetheless, respondent met with several clients who stated that they wanted respondent to continue to represent them. Respondent obtained written waivers of conflict for some of the clients and oral waivers for others. In one matter, respondent entered a notice of appearance and filed a motion to dismiss arguing that the client had been deprived of the right to an attorney of his choice, namely respondent. Respondent drafted similar motions to dismiss for several other clients but instructed the individuals not to file the motions. In these matters, respondent’s name was not on the motions, and he did not enter his appearance; nor did respondent consult with the attorneys who were representing those defendants. The basis for the purported pro se motions to dismiss was that the clients were denied the right to have respondent as their attorney. The disciplinary judge opined that “[t]he motions had no chance of success.”
In February 2023, respondent brought a federal action on behalf J.C. (the client from the impound lot incident) and others challenging Maine’s abandoned vehicle law. The disciplinary judge opined that, while certain allegations in the complaint may have had merit, respondent alleged, without basis, that “towing companies, law enforcement agencies, and the Bureau of Motor Vehicles were engaged in a scheme to steal motor vehicles.”
In a December 14, 2022, email, respondent accused ADA H.S. of tampering with video evidence in the case of defendant J.W., who had met with respondent but did not retain him. Respondent also never entered an appearance on J.W.’s behalf. In the email, respondent stated that he intended to report the ADA to federal criminal authorities and offered the ADA H.S. opportunity to provide information in her defense. The ADA, who felt that the intent of the email was to intimidate her, initiated a criminal investigation of respondent based primarily on his email, which the disciplinary judge opined “may not have been appropriate.” Nevertheless, the judge also opined that “[t]he information [respondent] had as of [the] date [of his email], or any date, provided no justification for [his] email threatening [the ADA] with criminal prosecution. Furthermore, [respondent] was not representing J.W. at the time.”
Also, on or about February 8, 2023, respondent initiated a confrontation with ADA M.R. whom respondent felt had endangered his client’s life when he publicly raised his client’s allegations of gun theft by the police. As described in the resulting disciplinary order:
“as [the ADA] was leaving the courthouse, [respondent] called out from a courtroom and followed [the ADA]. [Respondent] was very angry and out of control. He swore at [the ADA] repeatedly and belittled him. He ‘got in his face.’ “Although [respondent] was not going to strike [the ADA], a judicial marshal felt the nature of the confrontation suggested that he might. The marshal stepped between them and instructed [respondent] to leave the courthouse. It took a couple of requests before [respondent] complied and left the courthouse. “[The client] did not feel that [the ADA’s] actions endangered his life. He did feel as though [respondent] was sticking up for him. “[The ADA] was genuinely shaken and made a complaint to the Board based on the incident. There is no evidence his complaint was done in consultation with anyone from [the ADA’s office] or anyone else.”
The disciplinary judge found that respondent violated Maine Rules of Professional Conduct (ME RPC) rule 1.1 when he failed to provide his client J.C. with competent representation by taking her to remove her car from the impound lot “knowing the lot owners would object to removing the car from the lot and knowingly exposing her to the risk of complicating her legal situation, including an arrest and a charge of Violating Conditions of Release.” The judge continued, “Although he did make an effort to persuade to take a different course, he did not explore any other legal action. Exposing his client to the consequences of an extra-legal action is not competent representation.”
The court also found that respondent violated ME RPC’s rules 1.1 and 1.7 (conflict of interest) with respect to his former MCILS clients based on his activities related to his motion for withdrawals and subsequent communication with former clients regarding the possible filings of pro se motions to dismiss.
In addition, the court found that respondent’s filed action alleging the existence of a criminal car theft ring and other allegations concerning a conspiracy to silence him, among other things, violated ME RPC 3.1 (frivolous litigation).
The court further found that respondent made frivolous and false statements during the disciplinary proceeding, namely, baseless accusations regarding, among others, bar counsel; and he requested that a judge in his federal disciplinary matter recuse himself because he “had served in the ‘fetid and corrupt’ state court system.”
Respondent was also found to have violated ME RPC’s rule 3.7(a) (“[a] lawyer shall not act as advocate at a tribunal in which the lawyer is likely to be a necessary witness”) based on the filed federal action, noting, among other things, that “[respondent] himself confuses his role as advocate and his role as participant in the pleadings themselves.” The court’s additional finding that respondent violated ME RPC’s rule 4.4(a) (“(i]n representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person”) was based on his confrontations with the ADAs.
The court also found that respondent violated ME RPC’s rules 8.2(a) (“[a] lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge”), 8.4(a) (violate or attempt to violate a disciplinary rule), and 8.4(d) (conduct prejudicial to the administration of justice) based upon, among other things, respondent’s statements to two judges, other conduct before the courts, and his urging of defendants to file the pro se motions to dismiss.
Reciprocal discipline
a three-year suspension would be excessive. Respondent has never been the subject of discipline, either publicly or privately, during his 32 years of practice in New York. A one-year suspension is the appropriate reciprocal discipline as it takes into account the seriousness of the Maine court’s misconduct findings, respondent’s pattern of misconduct, and his lack of remorse; it is, furthermore, in reasonable accord with the relevant precedent
Sanction
the motion should be granted and respondent suspended from the practice of law for a period of one year, effective 30 days from the date of this order, and until further order of this Court.
(Mike Frisch)