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Court Referee Claims He Cannot Remain Impartial

Respondent was admitted to practice by this court in 1967 and maintains a law office in. By a petition, petitioner, the Committee on Professional Standards, brings two charges of professional misconduct against respondent: (1) making false accusations and assertions against a Family Court hearing examiner in a letter; and (2) improperly communicating with the Family Court hearing examiner.

A New York Family Lawyer said after a lengthy hearing, the referee sustained both charges of misconduct and recommended that respondent be censured and that costs be assessed against him. Petitioner moves to confirm the referee’s report. Respondent opposes the motion and seeks dismissal of the charges.

A New York Child Custody Lawyer said that in December 1990, a resident of Ellenville in Ulster County, met with respondent to discuss a violation of child support petition which had been filed against him in Family Court in Suffolk County where his ex-wife resided. Said client had just appeared, on November 26, 1990, before Suffolk County Family Court hearing examiner in response to an arrest warrant issued after the client failed to appear on the return date of the violation petition. At the hearing, hearing examiner scolded him for his failure to comply with the Family Court’s child support orders and for his failure to appear on the hearing. He also used a threat of jail to emphasize the seriousness of the situation. He advised the client to get an attorney, released him, and scheduled a hearing on the violation petition. he was not accompanied by an attorney at the next hearing. During prior child support appearances before hearing examiner had been represented by retained and assigned attorneys and by a Legal Aid Society.

A Brooklyn Family Lawyer said the client met with respondent in December 1990 and provided respondent an oral recounting of the child support proceedings and some relevant documents. He also accused hearing examiner of bias stemming from an alleged high school antagonism and the hearing examiner and his ex-wife and hearing examiner all graduated from the same high school.

Respondent prepared a six-page letter, on client’s behalf. It was written on respondent’s letterhead and was addressed to the Chief Judge of the Suffolk County Family Court. The last page of the letter indicated that copies had been provided to hearing examiner, the Commission on Judicial Conduct, and client. Respondent relied solely on the information provided to him by client in drafting the letter. He did not attempt to corroborate the factual allegations nor did he do any legal research to support his statements. Although respondent testified that he intended the entire letter be read with the caveat “according to the client” his failure to preface many of the factual allegations with such a phrase or “on information and belief” created the impression that the letter’s factual allegations were statements of fact respondent knew to be true. Also, although respondent testified that by writing the letter he was not undertaking to represent the client, the letter indicates that respondent was “assisting” him in the matter and urged that certain relief be granted by the court. Respondent’s actual status with respect to the client was not made clear. The bulk of the letter was an attempt to demonstrate possible bias against the client by hearing examiner. While actual distribution of the letter is less than clear, it appears that respondent or the client mailed a copy of it to the Commission on Judicial Conduct before the January 3, 1991 hearing; that on January 3, the client delivered a copy to the Suffolk County Family Court’s supervising judge and a copy to an attorney, assigned on January 3 to represent him. He may have discussed the letter before the hearing with hearing examiner but the latter appears to have first seen the letter when the supervising judge later discussed it with him in the supervising judge’s chambers. The client’s ex-wife was not provided a copy, although she appeared pro se.

A Brooklyn Child Custody Lawyer said at the hearing, examiner concluded that both sides believed he could not be impartial because he knew everybody 20 years ago and referred the matter to another hearing examiner.

The Court confirm the referee’s report with respect to charge I to the extent of finding respondent guilty of violating DR 1-102(A)(5) and (7). It constitutes professional misconduct in violation of such rules for an attorney to publish in writing inflammatory accusations on behalf of a party to litigation, without clear attribution as to source or reliability, against the party’s adversary and against the judge or hearing officer presiding where the writing is intended to influence the course and outcome of the proceeding and where the attorney’s failure to make a reasonable effort to verify the accusations or determine if there is a fair basis for them results in a writing replete with falsehoods, inaccuracies, and misleading statements. Because we agree with the referee’s finding that respondent acted in good faith, we conclude that respondent should not be found guilty of violating DR 8-102(B) which proscribes knowingly making false accusations against an adjudicatory officer.

The Court likewise confirms the referee’s report with respect to charge II. Respondent did not take adequate steps to insure that the letter reached the client’s ex-wife. The letter was not copied to her and respondent inadvisably relied on the client for its distribution. As noted in EC 7-35, a lawyer should not communicate with a tribunal by a writing unless a copy thereof is promptly delivered to opposing counsel or to the adverse party if he or she is not represented by a lawyer.

Respondent’s defenses were found unpersuasive to the disciplinary charges. His claim that he had an ethical duty to report knowledge of judicial bias and improper judicial actions seems misdirected: the charges against him concern the manner in which he discharged his perceived ethical duty, not whether he had one. He also claims that he was faced with an emergency justifying his total reliance on client for information. However, the testimony before the referee indicates respondent had adequate time to attempt to substantiate the letter’s statements. He also reasserts the truth of the letter, claiming the client’s allegations were proved at the disciplinary hearing. However, the referee discredited client’s testimony, a conclusion we are loath to disturb as the referee was in the best position to assess credibility.

In determining an appropriate disciplinary sanction, we first note several mitigating considerations, including respondent’s good faith in sending the letter and the relatively minor harm it caused. Respondent has also been active in many volunteer community activities and provides pro bono legal representation. Some aggravating considerations, however, must also be cited. Respondent sent the letter to the Commission on Judicial Conduct, indicating an intent not only to help client but to exert extrajudicial pressure on the hearing examiner. Respondent has been previously subjected to disciplinary sanctions. He has been orally admonished by petitioner twice, in 1981 and 1982, received a written admonition, and was publicly censured in 1990.

Considering the nature of the misconduct and respondent’s prior disciplinary record, the court conclude that respondent should be suspended from the practice of law for three months.

Finally, although requested by petitioner and recommended by the referee, we conclude that this is not a proper case for imposition of costs against respondent. Also, although respondent’s behavior before the referee was no doubt annoying and lengthened the hearing, his conduct did not rise to the level of intentional and abusive litigation practices warranting the imposition of financial sanctions.

The Court ordered that, petitioner’s motion to confirm the referee’s report be granted, with respect to charge I, to the extent of finding respondent guilty of violating the Code of Professional Responsibility, DR 1-102[191 A.D.2d 805] (A)(5), (7) and, with respect to charge II, in its entirety; and it is further ordered that pursuant to Judiciary Law § 90(2) respondent is hereby suspended from the practice of law for a period of three months; and until further order of this court, with leave to apply for reinstatement after the expiration of said period upon furnishing satisfactory proof that during said period he has actually refrained from attempting to practice as an attorney and counselor at law, that he has complied fully with the provisions of section 806.12.

Family related cases should be entrusted to quality and skilled lawyers such as our Suffolk County Family attorneys here in Stephen Bilkis and Associates. Don’t hesitate to contact us, through our Suffolk County Order of Protection lawyers if abuse sets in.

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