Challenge To Reciprocal Discipline Slapped Down

The New York Appellate Division for the Second Judicial Department rejected challenges to reciprocal discipline based on a sanction imposed in Florida

Hearings were held on April 22 and April 23, 2021, and May 5 and May 6, 2021, after which a Special Referee, among other things, found that, at trial, the Florida Bar proved by clear and convincing evidence that the respondent violated the Rules Regulating the Florida Bar rule 4-8.2(a), impugning qualifications and integrity of judges or other officers, as charged in counts one, two, and three.

The Special Referee found, in mitigation, inter alia, that the respondent presented character witnesses who testified to his good character and reputation. The Special Referee recommended that the respondent be found guilty of misconduct. As to the appropriate sanction, the Special Referee recommended a 90-day suspension with automatic reinstatement, a two-year probationary period during which the respondent must complete additional ethics and professional classes, and payment of costs in the disciplinary proceeding.

By order dated June 8, 2023, the Supreme Court of Florida affirmed the Special Referee’s findings of fact and recommendations as to guilt, but imposed a 91-day suspension, effective 30 days from the filing of the order, and $10,671.75 for recovery of costs.

Respondent’s contentions

In response to this Court’s order to show cause, the respondent contends, among other things, that the Florida courts violated his First Amendment rights, retaliated against him for reporting misconduct, selectively prosecuted him, and falsely accused him of fraud. The respondent asserts the defenses provided in 22 NYCRR 1240.13(b)(2) and (3), and avers that discipline should not be imposed upon him as the Supreme Court of Florida convicted him despite evidence proving his innocence and that he did not violate any of the Rules of Professional Conduct (22 NYCRR 1200.0). The respondent now challenges the discipline imposed by order of the Supreme Court of Florida before this Court, contending that the Special Referee and Supreme Court of Florida overlooked federal and state laws that protect him from retaliation and disbarment for filing motions to disqualify in good faith.

By separate motion, the respondent moves to dismiss this reciprocal disciplinary proceeding pursuant to New York Civil Rights Law §76-a(1)(a), contending that the proceeding constitutes a Strategic Lawsuit Against Public Participation (“SLAPP”), and the continued threat of reciprocal discipline violates his First Amendment rights and chills his free speech. The respondent contends that the Florida Bar proceedings were brought in bad faith, in a pattern of harassment. The respondent also contends that he never had any meaningful opportunity to have a fair and impartial court adjudicate his First Amendment retaliation claims in Florida and that reciprocal discipline would unconstitutionally punish him for protected speech on matters of public importance such as fraud in foreclosure proceedings and the integrity of certain courts in Florida.

The court

Based on the misconduct underlying the discipline imposed by the order of the Supreme Court of Florida dated June 8, 2023, we find that the imposition of reciprocal discipline is warranted and agree with the Grievance Committee that the respondent’s arguments against the imposition of discipline are without merit. To the extent that the respondent now seeks to challenge the findings in the Florida proceeding, he is not permitted to do so in a reciprocal disciplinary proceeding (see Matter of Weissmann, 180 AD3d 155, 158; Matter of Carmel, 154 AD3d 72). The respondent’s motion to dismiss is also without merit.

Under the totality of the circumstances, we conclude that a suspension for a period of six months is warranted, and the respondent’s motion is denied.

(Mike Frisch)