Respondent was admitted to the practice of law in the State of New York by the First Judicial Department on January 18, 1982. At all times relevant to this proceeding, respondent maintained an office for the practice of law within the First Judicial Department. A Bronx DWI Lawyer said that, in December 2001, the Departmental Disciplinary Committee (Committee) served respondent with a notice and statement of charges alleging 28 counts of professional misconduct against him involving seven separate legal matters. The charges alleged that respondent engaged in a pattern of misconduct including the repeated disregard of court orders and directives; misrepresentations to clients, adversaries and courts; and the repeated neglect of client matters, often resulting in default judgments. By order entered November 28, 2001, this Court appointed a Referee to hear and report on the charges. Respondent filed an answer with affirmative defenses in January 2002.
A New York Criminal Lawyer said that, prior to the hearing, the Committee made a motion before the Referee requesting that the doctrine of collateral estoppel be applied to find respondent guilty of 11 of the 28 counts charged, based upon the findings and decisions issued by four courts. Respondent opposed the motion, and by decision dated November 1, 2002, the Referee granted the collateral estoppel motion on six of the 11 counts requested. Following 23 days of liability hearings on the remaining counts, the Referee issued a February 18, 2003 report sustaining 12 other counts and dismissing 13 counts. Three days of sanction hearings were held, with the Committee recommending disbarment and respondent, citing various mitigating factors, arguing for a public censure. In a final report dated May 5, 2003, the Referee recommended a five-year suspension. A Hearing Panel was convened, and it heard oral argument and accepted written submissions from both parties. In a written determination dated March 2, 2004, the Hearing Panel affirmed the Referee’s findings of fact and conclusions of law, except as to count 3, which it disaffirmed, and it further affirmed the Referee’s recommended sanction of a five-year suspension.
A Brooklyn Criminal Lawyer said that, the Committee now moves for an order pursuant to 22 NYCRR 603.4 (d), confirming the Referee’s findings of fact and conclusions of law, as modified by the Hearing Panel’s recommendation, and imposing a sanction suspending respondent from the practice of law for a period not less than five years. A review of the five matters in which charges were sustained follows.
A Bronx DWI Lawyer said that, respondent represented a client in a criminal DWI matter that was scheduled to proceed to trial on January 8, 1999, in Cortlandt Town Court. On that morning, respondent faxed an affirmation of actual engagement to both the clerk of the court and the prosecutor, representing that he was required to appear before the United States Court of Appeals for the Second Circuit on another matter that morning. The case was adjourned to February 5, 1999, at which time respondent reiterated to the Town Justice that it was not his choice that he was unable to appear on the previous date, since he had a lengthy argument before the Second Circuit.
At the Referee’s hearing, the evidence established that respondent had not actually appeared before the Second Circuit on January 8th and that the case cited by respondent was neither calendared nor argued on that date. Rather, respondent had made the choice to file an emergency relief application at the Second Circuit’s Clerk’s office and spent some time speaking to a court attorney in an unsuccessful attempt to meet with a judge. Subparts (c) and (d) of count 26 were sustained by the Referee, who found that respondent made “deceitful representations” in violation of DR 1-102 (a) (4) by faxing the false notice of engagement to the court on January 8, 1999, and by making a false statement to the Town Justice on February 5, 1999 when questioned about the matter. Based on the same conduct, the Referee sustained counts 27 and 28, which alleged that respondent’s falsehoods constituted conduct prejudicial to the administration of justice (count 27 [DR 1-102 (a) (5)]) and conduct that adversely reflected on his fitness to practice law (count 28 [DR 1-102 (a) (7)]).
A Bronx Criminal Lawyer said that, the Committee seeks an order confirming the Referee’s findings of fact and conclusions of law, as modified by the Hearing Panel’s report, and imposing a suspension of not less than five years. Respondent submitted a memorandum of law in opposition, arguing that each of the charges should be disaffirmed and, alternatively, if any are sustained, the sanction should be no worse than a public censure. Respondent also raises significant arguments relating to the Referee’s power to invoke the doctrine of collateral estoppel, an issue which requires some discussion.
The issue in this case is whether the referee erred in invoking collateral estoppel.
The court held that the doctrine of collateral estoppel precludes a party from re-litigating `an issue which has previously been decided against him in a proceeding in which he had a fair opportunity to fully litigate the point’. The two requirements for its application are: first, the identical issue necessarily must have been decided in the prior action and be decisive in the present action, and second, the party to be precluded must have had a full and fair opportunity to contest the prior determination.
Respondent does not challenge the invocation of collateral estoppel in attorney disciplinary proceedings generally. Nor could he as the Court of Appeals and numerous appellate courts in this state have upheld the use of collateral estoppel in such proceedings. Respondent’s argument is narrower. He contends that the Referee was without power to make a collateral estoppel ruling because it would exceed her order of reference, which was to hear and report. He further asserts that it is bad policy to give referees preclusive power in disciplinary proceedings, since complex collateral estoppel determinations should be left to the court and, from a procedural perspective, such a policy would deprive the court of any opportunity to pass on the merits of the charges in the event of an erroneous collateral estoppel ruling by a referee.
Respondent raised similar arguments before the Referee, who rejected them. The Referee concluded that her authority in legal disciplinary matters is derived from part 605 of the Rules and Procedures of the Departmental Disciplinary Committee of the Appellate Division, First Department, which specifically empower the referee to conduct hearings, make findings of fact and conclusions of law and recommend sanctions it deems appropriate. The rules further authorize a referee to entertain motions, rule on the admissibility of evidence and make determinations as to what, if any, charges are sustained and sanction should be imposed. The Referee also cited two disciplinary cases from this Court in which collateral estoppel was applied by a referee.
The Hearing Panel also rejected respondent’s challenge to the Referee’s authority, but on different grounds. The Panel found that the Referee erroneously relied on her power under the rules to decide motions and make evidentiary rulings as a basis for authorizing collateral estoppel preclusion by a referee, since “collateral estoppel is not an evidentiary matter,” but rather “determines an issue”.
We hold that a referee in a disciplinary proceeding has the power and authority to rule on a collateral estoppel motion. In reaching this conclusion, we rely on the reasoning of both the Referee and Hearing Panel. The Referee correctly concluded that her power is derived from this Court’s rules and, contrary to the Hearing Panel’s determination, those rules authorize the referee to do more than rule on evidentiary matters, but also to make “Determinations”. Indeed, because the rules plainly authorize the referee to decide motions, issue finding of facts and conclusions of law and make “determinations” as to whether charges should be sustained and a sanction imposed, we discern no basis in the rules to deny the referee the power to make a collateral estoppel ruling.
Significantly, under the Court’s rules outlining the procedures governing the disciplinary process, every finding, ruling and determination by the referee is subject to review by both the Hearing Panel and by this Court, which has the sole authority to impose discipline. Thus, no danger exists that the referee, rather than the court, will finally determine an issue.
Concluding, as we have, that the referee has the power to make collateral estoppel rulings, even as to default judgments in appropriate cases, we now address the Referee’s application of the doctrine to the specific charges. With respect to the RLR matter, we find that collateral estoppel was properly based on the Southern District Grievance Committee’s censure order relating to those two matters. We reject respondent’s argument that the Committee chose the “wrong procedural format” in seeking collateral estoppel instead of a petition for reciprocal discipline under section 603.3 of this Court’s rules. Although that section provides an alternative method of discipline, nothing in the rules limits the Committee to that procedure. Nor has respondent stated any basis for the applicability of the defenses to reciprocal discipline enumerated in section 603.3 (c). Respondent cannot be heard to complain about a lack of notice and opportunity to be heard where he submitted papers in response to the Grievance Committee’s order to show cause, requested two extensions to file additional papers, but then never did so.
Respondent offers several arguments in opposition to the Referee and Hearing Panel’s recommended five-year suspension, but none is meritorious. His main contention is that a public censure, rather than a suspension, is appropriate where an attorney’s misconduct arises from serious psychological problems or traumatic events and the attorney has taken firm steps to resolve the problems.
While respondent has taken affirmative steps to improve his behavior, his attempt to link his misconduct with his condition of depression is far more questionable. We agree with the Referee’s finding that the psychiatric testimony was “thin and not very convincing.” While respondent introduced expert testimony as to his diagnosis, he offered little, if any, testimony himself as to how his condition affected his work. Nor do any other facts suggest a connection between depression and his multiple instances of misconduct. None of the medical testimony in this record offered any explanation as to how a condition of depression could lead to deceitful behavior and repeated disregard of court orders. In our view, the connection is wholly speculative and should be given little consideration in mitigation.
For its part, the Committee has made a compelling showing that a lengthy suspension is not only warranted, but in fact is the most lenient of sanctions under these circumstances. As found by the Hearing Panel, respondent committed 17 violations of the disciplinary rules over a 12-year period, involving five different matters. He has engaged in a pattern of serious professional misconduct, all the while demonstrating an astonishing insensitivity to his legal and ethical obligations. He has caused material harm to at least two clients, and most assuredly caused untold frustration and inconvenience to his clients, opposing counsel and the courts. Although an argument could be made that the duration and seriousness of respondent’s misconduct warrants disbarment under our precedents.
Accordingly, the Committee’s motion for an order confirming the findings of fact and conclusions of law of the Referee, as modified by the Hearing Panel, and imposing a suspension of five years, should be granted and respondent suspended from the practice of law for a period of five years.
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