Petition for Writ of Certiorari — In re Kramer
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99
35 JUN 3 0 1999
No. 98-
IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 1998
IN THE MATTER OF
STEVEN M. KRAMER,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE NEW YORK COURT OF APPEALS.
PETITION FOR A WRIT OF CERTIORARI.
STEVEN M. KRAMER
468 N. Camden Drive
Suite 200
Beverly Hills, California 90210
(310) 859-5222
BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS
QUESTIONS PRESENTED.
I. Has a state court violated the First Amendment by dis-
barring an attorney on the basis of a statement made to a
newspaper reporter?
II. Has a state court violated the Due Process Clause by a
requirement that an attorney can avoid disbarment only if he
admits guilt through an expression of remorse while the at-
torney is still challenging the proceedings on due process
grounds and was entitled to contest guilt?
III. Has a state court violated the Due Process Clause by
disbarring an attorney without affording him an opportunity
to be heard on the merits?
IV. Has a state court violated the Due Process Clause by
raising numerous new charges/aggravating circumstances
without prior notice and relying upon them to disbar an at-
torney?
V. Has a state court violated the Due Process Clause by
disbarring an attorney for conduct not involving moral tur-
pitude without a prior warning that such conduct could give
rise to such punishment?
VI. May a state disbar an attorney based upon a prepon-
derance of the evidence standard?
li
TABLE OF CONTENTS.
CP FOS | sasinsiisciternitininstvstteasiveinteseiioibiitdsadinnaeies 1
FIED OE PIII casetensiscscedsindeeitsioistecmnialdeadins ill
PUIG OE POD: cicnsncsiistveiscsenatiesntenipeveriueciiiiataiiapianiabias l
Reasons Why the Petition Should be Granted ................. 4
I. The State May Not Disbar An Attorney On The
Basis Of A Statement To The Press Where The
Statement Had No Possibility Of Impacting An
CEE FUODUITIIE, cccascaiiserssrvicsiatsetsstaisaricinbiens +
II. The State Court Violated The Due Process
Clause By Disbarring Petitioner For Refusing
To Admit Guilt Through An Expression Of
Remorse While He Was Still Challenging The
Proceedings On Due Process Grounds ............... 5
III. The State Court Based Disbarment on
Conduct Not Previously Deemed Sufficient
For Discipline Let Alone Disbarment ................ 6
IV. The State Court Deprived Petitioner Of Due
Process By Not Giving Him A Chance To Be
Faas Cin TO PAD ssicctecincssstsscictainadeiaaigaian 8
V. Adding Additional Charges/Aggravating
Circumstances Without Prior Notice
Violated Due Process Clause ....................ccceseeee 10
ill
VI. The State Court’s Use Of A Preponderance
Of The Evidence Standard to Disbar An
Attorney Violates The Due Process Clause ....... 11
NR SEE Oa RR 12
TABLE OF AUTHORITIES.
CASES:
California Bankers Assoc. v. Shultz, 416 U.S. 21
ag a sisainiunaiiaaniine 6
Common Prof. Ethics Etc. v. Johnson, 447 F.2d
ds ciaieee 11
Cruzan by Cruzan v. Director, Missouri Dept. of
Health, 497 U.S. 261, 110 S.Ct. 2841 (1990) 0.0... 12
Dailey v. Vought Air Co., 141 F.3d 224 (Sth Cir.
ENG GSR ec ce 8,9
Gardner v. Broderick, 392 U.S. 273 (1968) .................0 5
Garrity v. New Jersey, 385 U.S. 493 (1967) .......... ee. 5
Gentile v. State Bar of Nev., 501 U.S. 1030 (1991) ........ 4
In re Crayton, 192 B.R. 970 (9th Cir.1996) ........ ee 12
In re Finkelstein, 901 F.2d 1560 (11th Cir. 1990) ........... 8
In re Medrano, 956 F.2d 101 (Sth Cir.1992)
Cee O ee Cee eee eee
In re Polypropylene Antitrust Litigation, 1998 WL
FE a etary I PD cacennisnccncsdnesatnetiintianensionns 8
In re Ruffalo, 390 U.S. 544, 88 S. Ct. 1222, 20
Scene 1-7 UIE. cnvnickinsctinbesisacuseenenwadeniebinicuaen 7, 10, 12
In re Snyder, 472 U.S. 634; 105 S. Ct. 2874 (1985) ........ 4
Matter of Capoccia, 59 N.Y.2d 549, 453 N.E.2d
GP Ce -Aasuiaisisisatninaeesastees atindananaeaiabeakenidmaiinaedie 11
Matter of Jacobs, 44 F.3d 84 (2d Cir. 1994) 0.00. 8
Schlumberger Tech. v. Wiley, 113 F.3d 1553
ale POU ccivnasvscisseiececsoihiiciealasinstedaalelscicdansdieidtintaaaccenste 8
Selby v. Arms [Kramer v. Arms], 1996 WL 131820
(S.D.N.Y. 1996), affirmed, 108 F.3d 329
Eee as IPI setsssessienibeslsasstseibiveaioeeslessameiiuansobisdbaaiiiniadsialaiaue l
Selling v. Radford, 243 U.S. 46 .......c.cccccsscosesesccerseesees 8,12
Spevack v. Klein, 385 U.S. 511 (1967) ........cccccccosrrsccereres 5
Van Sloten v. State Bar, (1989) 48 Cal.3d 921
MISCELLANEOUS:
United States Constitution
i I , ......., csccarcconitorntouniineiannmmaniiacnnineiie i
Eien PROUD COIIIID scevscccorenccosoesescoreseseses 1, 5, 8, 10, 11
No. 98-
IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 1998
IN THE MATTER OF
STEVEN M. KRAMER,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE NEW YORK COURT OF APPEALS.
PETITION FOR A WRIT OF CERTIORARI.
STATEMENT OF FACTS.
In the fall of 1996 the Disciplinary Committee
(Committee) of the New York Appellate Division Frist De-
partment started an investigation of petitioner as a result of
sanctions in Selby v. Arms [Kramer v. Arms], 1996 WL
131820 (S.D.N.Y. 1996), affirmed, 108 F.3d 329 (2d
Cir.1997) . The subject was whether petitioner had made an
intentionally false statement to the court concerning the date
and identity of a witness who had been deposed.’
On May 6, 1997 petitioner was suspended for six months
by the Supreme Court of New Jersey. The basis for the sus-
pension was a fee agreement that was found to have improp-
erly given the petitioner proprietary interest in a law suit.’
On October 16, 1997, on the basis of that suspension, the
Committee obtained an emergency order to show cause.
Without a hearing, and applying collateral estoppel to the
New Jersey order, The New York Appellate Division on that
date issued an indefinite interim suspension. The Court or-
dered that petitioner was only entitled to a hearing on the
form of punishment.
On May 18, 1998, the penalty hearing panel concluded:
We were impressed with the [peti-
tioner’s] character witnesses. We have no
doubt that [petitioner] is highly thought of by
many, if not most of his clients and that he
' Petitioner had mistakenly stated that his client’s deposition had been
completed on a certain date by telephone from Hawaii. In fact, on that
date, it was the petitioner’s expert witness who had given a deposition.
The client’s deposition had occurred on another date. As the panel itself
found, petitioner’s statement could not possibly have been made to in-
tentionally mislead the court. (A. 43a).
* Petitioner had been retained by a debtor in bankruptcy to pursue an
appeal of a breach of contract suit in the Ninth Circuit. Petitioner fully
disclosed the fee agreement that included the challenged provision. The
clause required the debtor to obtain petitioner’s concurrence before en-
tering into any settlement. Petitioner had insisted on this clause to pre-
vent the debtor from entering into a settlement that favored him over the
creditors.
~ te adie akaecntineta tie 28" si i eB :
leaves them with the correct impression that
he is fighting for their cause.
(Emphasis added.) (A. 10a).
The Committee rejected the prosecutor’s charge that the
petitioner had intentionally misled a court:
Certainly, the cases cited to us other than
[In the Matter of] Mason involved false testi-
mony, which we have not found here. We as-
cribe the falsity of Respondent’s assertions
more to carelessness than to venality, more to
a practice of perceived certainty than to delib-
erate falseness.
(Emphasis added.) (A. 43a).
The Committee then proceeded to ‘reluctantly’ recom-
mend disbarment on the basis of what it believed to be the
controlling authority (the Mason case) in New York. It stated
that otherwise it would have only recommended a suspen-
sion. The panel relied in substantial part on a comment made
by petitioner to a reporter a year prior to the start of the in-
vestigation. (A. 45a). On September 24, 1998, the Appellate
Division emphasizing that interview confirmed the recom-
mendation. Jd. On April 1, 1999 the NY Court of Appeals
denied petitioner’s petition for leave to appeal. (A. la).
As a result of the New York disbarment, reciprocal dis-
barment orders without hearing have been entered in the
other jurisdictions in which petitioner had been licensed. A
similar order is being considered by this Court. In 24 years of
practice, petitioner has never been found to have engaged in
an act of moral turpitude. See p. 6, n.4.
REASONS WHY THE PETITION SHOULD
BE GRANTED.
I. THE STATE MAY NOT DISBAR AN ATTORNEY ON THE
BASIS OF A STATEMENT TO THE PRESS WHERE THE
STATEMENT HAD NO POSSIBILITY OF IMPACTING AN
ONGOING PROCEEDING.
This Court held in /n re Snyder, 472 U.S. 634; 105 S. Ct.
2874 (1985)) that an attorney may not be suspended for criti-
cizing a court where there is no likelihood of prejudicing a
trial. See also, Gentile v. State Bar of Nev., 501 U.S. 1030
(1991). The New York order clearly conflicts with those de-
cisions. Petitioner told a reporter a year before the discipli-
nary investigation started that certain court rulings in which
the petitioner had been criticized or sanctioned involved
conduct that was “chicken shit”. (A. 45a). The New York
court cited that as grounds for disbarment. (A. 6a):
The panel also considered an article in
Lawyers’ Weekly USA in which respondent
was quoted as referring to the findings of his
numerous ethical violations as ‘for chicken-
shit stuff’. In this article he compared himself
to a superstar athlete who is willing to risk
breaking the rules although he is sometimes
penalized, sanctions were just a necessary cost
of playing the game zealously. Respondent
stood by these statements when questioned at
the disciplinary hearing, and expressed his
belief that his criticized conduct was ‘part of
being a tough litigator’.’
I. THE STATE COURT VIOLATED THE DUE PROCESS
CLAUSE BY DISBARRING PETITIUNER FOR REFUSING
To ADMIT GUILT THROUGH AN EXPRESSION OF
REMORSE WHILE HE WAS STILL CHALLENGING THE
PROCEEDINGS ON DUE PROCESS GROUNDS.
A state may not deprive a person of his or her livelihood
for refusing to waive his constitutional rights. Garrity v. New
Jersey, 385 U.S. 493 (1967); Boyd v. US., 116 U.S. 616
(1886); Gardner v. Broderick, 392 U.S. 273 (1968). This
Court in Spevack v. Klein, 385 U.S. 511, 516 (1967) held
that a state may not disbar an attorney based upon his refusal
to waive his constitutional rights:
The threat of disbarment and the loss of pro-
fessional standing, professional reputation,
and of livelihood are powerful forms of com-
pulsion.
3 The actual comment and context from the interview, (A. 45a), was :
The firms I’m up against . . . [woul]d just as soon
ruin me as have a cup of coffee. If I’M a shrinking
violet, they’ll walk all over me . . . The findings were
for chicken-shit stuff . . . You'll never find sanctions
saying I destroyed documents or pressured witnesses to
falsify documents .. .
See also, Van Sloten v. State Bar, (1989) 48 Cal.3d 921, 932-
933 (attorney may not be disciplined for failure to admit
guilt); California Bankers Assoc. v. Shultz, 416 U.S. 21, 29
(1974).
The New York court held that the comment, even though
made a year before the disciplinary investigation even
started, showed a lack of remorse. The court disregarded the
fact that the petitioner was challenging the proceedings on
numerous constitutional grounds as described in this petition
and was still contesting guilt.
HI. THE STATE COURT BASED DISBARMENT ON CONDUCT
NOT PREVIOUSLY DEEMED SUFFICIENT FoR DIS-
CIPLINE LET ALONE DISBARMENT.
In addition to the petitioner's comment to the press, the
New York court based disbarment on a finding that the peti-
tioner had, in the words of the Disciplinary Committee panel,
“pushed the envelope” in prosecuting cases. (A. 42a). There
was no evidence of any moral turpitude. No ruling or warn-
ing existed that would have put petitioner — or any other
attorney — on notice that “pushing the envelope” could re-
sult in disbarment. None of the conduct involved acts of
moral turpitude; witness tampering, destruction of docu-
ments, theft of funds, abandonment of a client, attempts to
improperly influence a judge or jury, perjury or intentionally
false statements.* Therefore, the disbarment order flatly con-
flicts with the rulings of this Court:
* The NY disciplinary panel explained that the term “‘pushing the en-
velope’ referred to petitioner’s prosecution of litigation. Petitioner, in 24
years of practice, had actually been sanctioned in no more than ten cases
RERERLAAl cn enn
SOS et BER Sn —— —— eee
A relevant inquiry in appraising a decision
to disbar is whether the attorney stricken from
the rolls can be deemed to have been on no-
tice that the court would condemn the conduct
for which he was removed. I would hold that
a federal court may not deprive an attorney of
the opportunity to practice his profession on
the basis of a determination after the fact that
conduct is unethical if responsible attorneys
would differ in appraising the propriety of
that conduct.
In re Ruffalo, 390 U.S. at 556 (1968) (White, J. concurring).
This Court approved of Justice White’s reasoning in
Zauderer v. Office of Disc. Counsel, 471 U.S. 626, 653
(1985):
(a] relevant inquiry in appraising a decision to
disbar is whether the attorney stricken from
the rolls can be deemed to have been on no-
tice that the courts would condemn the con-
duct for which he was removed.
In re Ruffalo, 390 U.S. 544, 554, 88 S. Ct.
1222, 1228, 20 L.Ed.2d 117 (1968) (WHITE,
out of over 1,000, which averages out to one non-venal sanction every 2
'Y, years of petitioner’s career. (A. 42a). Many a reasonable trial attorney
would not know that “pushing the envelope” without venality could re-
sult in suspension, let alone disbarment.
J., concurring in result), it may well be that
for Ohio actually to disbar an attorney on the
basis of its disclosure requirements as they
have been worked out to this point would
raise significant due process concerns.
Accord, Dailey v. Vought Air Co., 141 F.3d 224 (Sth Cir.
1998) (reversing disbarment for failure to provide notice of
charges and opportunity to be heard); Schlumberger Tech. v.
Wiley, 113 F.3d 1553 (11th Cir.1997) (reversing refusal to
admit attorney); /n re Finkelstein, 901 F.2d 1560, 1564 (11th
Cir. 1990) (reversing suspension: “In examining the district
court’s order of suspension, the relevant inquiry is whether
the attorney can be deemed to have been on notice that the
courts would condemn the conduct for which he was sanc-
tioned. This would necessarily include behavior which re-
sponsible attorneys would recognize as improper for a mem-
ber of the profession”; Jn re Polypropylene Antitrust
Litigation, 1998 WL 513, 990, 19 (N.D. Ga.1998)).
IV. THE STATE COURT DEPRIVED PETITIONER OF DUE
PROCESS BY NOT GIVING HIM A CHANCE TO BE
HEARD ON THE MERITS.
The court held that petitioner was not entitled to be heard
on the merits. (A. 3a, 8a). This violated the Due Process
Clause. Selling v. Radford, 243 U.S. 46, 51; Matter of Ja-
cobs, 44 F.3d 84, 90 (2d Cir.1994). The Fifth Circuit ex-
plained recently in reversing a disbarment where the attorney
was deprived of an opportunity to be heard on the merits ex-
amined this Court’s decisions:
ern i lB Pe ii iS 2 Sr cast
Prior to an attorney’s disbarment, he or she is
entitled to notice of the charges, made an op-
portunity to explain or defend . . . Ruffalo
[supra]. This principle has been clearly and
consistently expressed by the Supreme Court.
Theard v. U.S., 354 U.S. 278, 282 . . . (1957)
(‘Disbarment being the very serious business
that it is, ample opportunity must be afforded
to show cause why an accused practitioner
should not be disbarred.’); Ex Parte Robinson,
86 U.S. (19 Wall.) 505, 511. . . (1873)
(‘Before a judgment disbarring an attorney is
rendered he should have notice of the grounds
of complaint against him and an ample op-
portunity of explanation and defence.’); Ex
Parte Garland, 71 U.S. (32 How.) 333, 378
. (1866) (‘They hold their office during
good behavior, and can only be deprived of it
for misconduct ascertained and declared by
the judgment of the court after opportunity to
be heard has been afforded.’); see also, Bur-
kett v. Chandler, 505 F2d 217, 222 n.5 (10th
Cir.1974), cert. denied, 423 U.S. 876
(1975) (disbarment proceeding void due to
absence of prior notice or opportunity to be
heard... ).
Dailey v. Vought Air Co., 141 F.3d 224 (Sth Cir. 1998).
10
V. ADDING ADDITIONAL CHARGES/AGGRAVATING CIR-
CUMSTANCES WITHOUT PRIOR NOTICE VIOLATED DUE
PROCESS CLAUSE.
Petitioner was bombarded with from seventeen to twenty
five new charges [or aggravating circumstances] in the mid-
dle of the penalty hearing without prior notice. The orginal
and only petition for discipline was based on the New Jersey
suspension and the sanctions imposed in Selby. Nevertheless,
the prosecutor added from seventeen to twenty four new
charges under the guise of aggravating circumstances with-
out prior notice. This is completely inconsistent with /n re
Ruffalo, 390 U.S. 544 (1968):
Disbarment, designed to protect the public,
is a punishment or penalty imposed on the
lawyer. He is accordingly entitled to proce-
dural due process, which includes fair notice
of the charge. Therefore, one of the conditions
this Court considers in determining whether
disbarment by a State should be followed by
disbarment here is whether ‘the state proce-
dure from want of notice or opportunity to be
heard was wanting in due process.” Selling v.
Radford, 243 U.S. 46, 51. In the present case
petitioner had no notice that his employment
of Orlando would be considered a disbarment
offense until after both he and Orlando had
testified at length on all the material facts
pertaining to this phase of the case. As Judge
Edwards, dissenting below, said, “Such pro-
cedural violation of due process would never
pass muster in any normal civil or criminal
ne
11
litigation.’ These are adversary proceedings of
a quasi-criminal nature. The charge must be
known before the proceedings commence.
390 U.S. at 550-51 (emphasis added). Accord,
Matter of Abrams, 521 F.2d 1094, 1104-1105
(3d Cir. 1975) (en banc) (reversing disbar-
ment because lower court did not advise at-
torney that it was considering additional
charges).
See also, Common Prof. Ethics Etc. v. Johnson, 447 F.2d
169, 172-173 (3d Cir. 1971) (same).
VI. THE STATE COURT’S USE OF A PREPONDERANCE OF
THE EVIDENCE STANDARD TO DISBAR AN ATTORNEY
VIOLATES THE DUE PROCESS CLAUSE.
New York applies a preponderance of the evidence stan-
dard in attorney disciplinary matters. Matter of Capoccia, 59
N.Y.2d 549, 453 N.E.2d 497 (1983). The ruinous nature and
stigma of disbarment requires, under the Due Process Clause,
that a clear and convincing evidence standard be used. This
is not simply the removal of a business license. It is far from
the type of decision that requires only a rational basis. A per-
son’s reputation, professional life and family life should not
be destroyed so easily, particularly here where there was no
suggestion of moral turpitude. It is a scarlett letter that can-
not be removed. It is worse, in some ways, than a felony rec-
ord. A disbarred attorney cannot hope to get a teaching job or
any other job of trust. Before that draconian measure is
taken, a standard more strict than that which governs fender
12
benders should be used. This Court’s decisions support that
conclusion. Cruzan by Cruzan v. Director, Missouri Dept. of
Health, 497 U.S. 261, 110 S.Ct. 2841 (1990). This Court has
held that disbarment proceedings are quasi criminal in na-
ture. /n re Ruffalo, 390 U.S. 544 (1968). (“These are adver-
Sary proceedings of a quasi-criminal nature”); Selling v.
Radford, 243 U.S. 46, 51. Every federal court who has ad-
dressed the issue has held that federal disbarment cannot take
place without satisfying the clear and convincing evidence
standard. /n re Crayton, 192 B.R. 970 (9th Cir.1996); Jn re
Medrano, 956 F.2d 101, 102 (Sth Cir.1992).
The arbitrary nature of the state court’s order here also
supports a requirement that the clear and convincing standard
be applied. As noted, never before in the history of New
York disbarment proceedings has an attorney been disbarred
for conduct that did not involve an act of moral turpitude.
The only accusation of such conduct was flatly rejected by
the disciplinary committee panel. See page 1, n. 1, supra.
Petitioner’s career should not be destroyed in such a cavalier,
arbitrary, and unconstitutional manner.
CONCLUSION.
For the foregoing reasons, the petition should be granted.
Respectfully submitted,
STEVEN M. KRAMER
468 N. Camden Drive
Suite 200
Beverly Hills, California 90210
(310) 859-5222
APPENDIX TABLE OF CONTENTS.
APPENDIX A
APPENDIX B
Disciplinary Committee Proceedings
APPENDIX C
Report of the Hearing Panel
APPENDIX D
Excerpt of Article from Lawyers Weekly USA,
dated November 4, 1996
Oa Sete ie a
RNIB BOS a AD a ID da tn
APPENDIX A.
State of New Pork,
Court of Appeals
At a session of the Court, held at Court of
Appeals Hall in the City of Albany
on the first day
of April 1999
Present, HON. JUDITH S. KAYE, Chief Judge, presiding.
1-24 Mo. No. 294
In the Matter of Steven M.
Kramer (Admitted as Steven
Michael Kramer), a disbarred
attorney:
Departmental Disciplinary
Committee for the First
Judicial Department,
Respondent,
Steven M. Kramer,
Appellant.
A motion for leave to appeal to the Court of Appeals in
the above cause having heretofore been made upon the part
of the appellant herein and papers having been submitted
thereon and due deliberation having been thereupon had, it is
ORDERED, that the said motion, insofar as it seeks leave
to appeal from the October 16, 1997 Appellate Division or-
der, be and the same hereby is dismissed upon the ground
2a
that it does not lie, appellant having previously moved in this
Court for leave to appeal (91 NY2d 805) from the same Ap-
pellate Division order from which he currently seeks leave to
appeal (see, Selinger v Selinger, 90 NY2d 842); and it is
ORDERED, that the said motion, insofar as it seeks leave
to appeal from the Appellate Division order of disbarment,
be and the same hereby is denied.
/s/
Stuart M. Cohen
Clerk of the Court
3a
APPENDIX B.
SUPREME COURT, APPELLATE DIVISION
First Department, August 1998
Joseph P. Sullivan, Justice Presiding
Ermst H. Rosenberger
Richard W. Wallach
Milton L. Williams
Angela M. Mazzarelli, Justices
---- ---X
In the Matter of Steven M. Kramer
(admitted as Steven Micisael Kramer),
a suspended attorney:
Departmental Disciplinary Committee
for the First Judicial Department,
Petitioner, M-4072
Steven M. Kramer,
Respondent.
---- x
Disciplinary proceedings instituted by the Departmental
Disciplinary Committee for the First Judicial De-
partment. Respondent was admitted to the Bar as
Steven Michael Kramer, at a Term of the Appellate
Division of the Supreme Court for the Third Judicial
Department, on December 18, 1984.
4a
Richard Supple, of counsel (Thomas J. Cahill, Chief
Counsel), for petitioner
Steven Kramer, of counsel (Steven Kramer & Asso-
Ciates, attorneys), for respondent.
M-4072
August 3, 1998
In the Matter of Steven M. Kramer, a Suspended Attomey
PER CURIAM
Respondent Steven M. Kramer was admitted to the prac-
tice of law in the State of New York by the Third Judicial
Department on December 18, 1984 as Steven Michael
Kramer. Respondent was admitted to the New Jersey Bar in
1983. At all times relevant to this proceeding, respondent
maintained an office for the practice of law within the First
Judicial Department.
Over the past 11 years, respondent has been sanctioned,
criticized, or otherwise disciplined 38 times for professional
misconduct involving numerous clients (see Kramer v Tribe,
156 FRD 96 [D NJ] [citing cases], affd 52 F3d 315 [3d Cir],
cert denied 516 US 907). In our decision dated October 16,
1997 (Matter of Kramer, 235 AD2d 87, lv denied 91 NY2d
805), we temporanly suspended respondent from the practice
of law and referred the matter back to the Departmental Dis-
ciplinary Committee for consideration of aggravating and
mitigating factors and recommendation of the appropnate
sanction. The Committee now moves for an order pursuant to
22 NYCRR 603.4(d) confirming the Hearing Panel’s find-
ings and its recommendation that respondent be disbarred.
The facts giving rise to respondent’s suspension are out-
lined in more detail in our previous decision (id. at 88-90). In
ne La
Sa
connection with his representation of Helen Selby before the
United States District Court for the Southern Distnct of New
York, respondent was sanctioned for willful disobedience of
discovery orders, as well as for making false statements in
affidavits. He also refused to accept being dismissed by his
client, and went so far as to file an unauthorized appeal and a
subsequent petition for rehearing on her behalf.
This pattern of resistance to a client’s wishes was repeated
during his representation of Jon E. DeLuca in New Jersey.
Several times, respondent prevailed upon his ailing client to
allow respondent to continue to litigate a weak case instead
of accepting the other side’s settlement offer. Once again,
even after being relieved as counsel, respondent tned to
block the parties’ efforts to settle.
In determining whether to recommend disbarment, the
Hearing Panel considered the recent misconduct described
above, plus numerous other past instances of respondent’s
deliberate noncompliance with discovery orders and his
contempt for the ethical rules of his profession. An abbrevi-
ated survey of respondent’s long history of official repn-
mands reveals a whole repertoire of habitual misdeeds: re-
fusing to cease acting on behalf on a client who has
dismissed him (e.g., Matter of Kramer, 193 AD2d 222); fla-
grantly violating discovery orders (e.g., International Mining
Co. v Allen & Co., 567 F Supp 777, 789-90 [SD NY)); filing
frivolous claims (e.g., LeMaster v Bull, 581 F Supp 1170,
1173 [ED Pa]; Giordano v Witzer, 558 F Supp 1261, 1262
(ED Pa]); and making false statements to the court (e.g., Sil-
verman v. Weil, 662 F Supp 1195, 1201 [D DC], affd 839
F2d 824 [DC Cir]; Rubin v. Buckman, 727 F2d 71, 72 [3d
Cir]). The above citations are by no means a comprehensive
list of the occasions on which respondent has been called to
task for employing such tactics.
6a
At the hearing before the Committee, as mitigating evi-
dence, respondent presented eight character witnesses, seven
of whom were former clients. While those witnesses spoke
highly of respondent, the Hearing Panel also took into ac-
count the fact that the witnesses were unaware of the formal
charges in this proceeding. The Panel refused to rely on a
polygraph test purporting to contravene the Southern Dis-
trict’s finding that he had lied about certain discovery issues
in the Selby matter, as this court had already ruled that re-
spondent was collaterally estopped from challenging the
District Court’s finding (Matter of Kramer, supra, 235 AD2d
at 89).
Aggravating factors included the frequency of respon-
dent’s misconduct, and the fact that notwithstanding repeated
reprimands for the same behavior, he persisted in using these
tactics in subsequent lawsuits. The Panel also considered an
article in Lawyer’s Weekly USA in which respondent was
quoted as referring to the findings of his numerous ethical
violations as “for chicken-shit stuff.” In this article, he com-
pared himself to a superstar athlete who is willing to risk
breaking the rules although he is sometimes penalized: sanc-
tions were just a necessary cost of playing the game zeal-
ously. Respondent stood by these statements when ques-
tioned at the disciplinary hearing, and expressed his belief
that his criticized conduct was simply “part of being a tough
litigator.”
Overall, the evidence presented at the hearing demon-
strates that respondent has shown neither remorse nor self-
control. Neither the public censure and private reprimand nor
the temporary suspension he received from this court, nor the
public reprimand from the Supreme Court of New Jersey,
have deterred his misconduct. He appears unable to appreci-
ate the magnitude of the harm he causes to his clients and to
ine Se ee Leen Ne aren ALR aah te
Ta
the courts before which he practices. Disbarment is certainly
warranted where the respondent’s pattern of ethical viola-
tions covers such a wide range of cases over several years
(Matter of Evangelista, 233 AD2d 1, 3), especially since that
pattern is likely to continue due to respondent’s evident im-
perviousness to sanctions and his indifference to the conse-
quences of his actions (Matter of Mason, 208 AD2d 1, 36,
recons dismissed 216 AD2d 89).
Accordingly, the Committee’s petition is granted, the
Hearing Panel’s findings of fact and conclusions of law are
confirmed, and the respondent is disbarred with his name to
be stricken from the roll of attorneys forthwith.
All concur.
Order filed.
8a
APPENDIX C.
BEFORE THE DEPARTMENT DISCIPLINARY COM-
MITTEE OF THE APPELLATE DIVISION OF THE SU-
PREME COURT OF THE STATE OF NEW YORK, FIRST
JUDICIAL DEPARTMENT
snaseeeuew nese xX
HP No. 43/97
In the Matter of
Before a Hearing Panel
Steven M. Kramer, Esq. : Consisting of:
Respondent : Otto G. Obermaier, Esq.
Hearing Panel Chair
Justin Feldman, Esq.
Oliver A. Smith, Esq.
weet eee cece ce ccene- X Alfred G. Gerosa
REPORT OF THE HEARING PANEL
In its Decision and Order, Matter of Kramer, 235 A.D.2d
87, 664 N.Y.S.2d 1 (1st Dept. 1997), (Panel Exhibit (“PX’’)
1), the Appellate Division granted two separate petitions of
the Departmental Disciplinary Committee and suspended
Respondent on an interim basis pursuant to 22 N.Y.C.R.R.
§§ 603.3 and 603.4 (e) (1) (ili) .
The matter was remanded to the Committee and by the
latter to this Panel for the purpose of holding a Hearing
“solely to consider evidence in mitigation or aggravation, if
any, and to recommend the appropniate sanctions’. (Order,
October 16, 1997)
ge ee
me eet oe
9a
Hearings were held on December 17, 1997 and January 6,
1998. Post-hearing submissions were received from the Staff
on February 10, 1998. Respondent made no formal post-
hearing submissions.
As to one of the Committee’s petitions, the Appellate Di-
vision on the basis of collateral estoppel found Respondent
guilty of professional misconduct by virtue of the findings by
United States District Judges for the Southern District of
New York Patterson and Cote, in Selby v. Arms, 93 Civ.
6481 (DLC) and the United States Court of Appeals for the
Second Circuit in Kramer v. Arms, 108 F.3d 329 (2d Cir.
1997) (hereinafter collectively “Selby’”). As to the second of
the Committee’s petitions involving a New Jersey case, De-
Luca v. Koala Blue (hereinafter “DeLuca’), the Appellate
Division ordered reciprocal discipline against Respondent
pursuant to 22 N.Y.C.R.R. § 603.3 after the New Jersey Su-
preme Court suspended Respondent for six (6) months. The
Appellate Division noted that it would normally impose the
same discipline New Jersey had, but in view of the Selby
matter for the sake of Judicial efficiency it ordered the
Committee, and thus this Panel, to consider the appropriate
sanction for both the DeLuca and Selby matters.
The Evidence in Mitigation
Respondent called 8 character witnesses, all but one in
person (Respondent’s Exhibit (“RX’’) B). Seven of the char-
acter witnesses were former clients of Respondent’s who
spoke highly of his dedication and competence. The other
character witness, Leona Guy, spoke equally highly of Re-
spondent, was a personal friend, his daughter’s teacher, and
for whom Respondent provided some advice and representa-
tion without fee.
10a
We were impressed with the character witnesses. We have
no doubt that Respondent is highly thought of by many, if
not most of his clients and that he leaves them with the cor-
rect impression that he is fighting for their cause. The issue
here is principally how he litigates for his clients. All of the
witnesses knew nothing of the formal charges in these pro-
ceedings, and several specifically testified that the findings in
Selby would not alter their opinion of Respondent. We credit
their testimony and Respondent’s own (Tr. 216) that knowl-
edge of the Selby findings would not have altered their
opinion of Respondent.
Respondent himself testified. He did not dispute the sanc-
tions in the other matters but did challenge a portion of the
Lightning Lube v. Witco case. Respondent produced a por-
tion of a news article reporting an opinion of District Judge
Barry in the United States District Court for the District of
New Jersey finding that Respondent did not “tamper” with
witnesses during the course of that case.
The article (RX D) from the New Jersey Law Journal is
not complete. The Staff agreed that there was no finding by
any disciplinary group in New Jersey that Respondent en-
gaged in witness tampering (Tr. 163). Although Respondent
was given two weeks to provide any additional information,
he did not. Nevertheless, we do not give any credence to a
claim that Respondent engaged in witness tampering in
Lightning Lube litigation.
Respondent also challenged Judge Cote’s finding that he
lied concerning the completion of certain depositions in
Selby. Respondent argues that it made no sense to prevan-
cate over a fact or facts so easily ascertainable. However,
Judge Cote’s Opinion and Order of December 19, 1995 finds
that Respondent falsely stated a series of facts, not solely the
lla
completion of the depositions. The relevant portions of her
Opinion and Order follow:
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nc ihe Waasenii aid tea A ie i WO TiS RN act
“Mr. Kramer also submitted his own affidavit
in opposition to the motion, in which he
makes several false statements. He asserts that
the plaintiffs deposition was “taken and
completed on September 30, 1994.” This
statement was repeated three times in Mr.
Kramer’s affidavit. In fact, plaintiff was only
deposed once, on January 20, 1994. Her depo-
sition was to be completed after the produc-
tion of outstanding discovery materials, but
those discovery materials were never pro-
duced and the deposition was never com-
pleted. After the motion to dismiss was fully
submitted and months after the close of dis-
covery, Mr. Kramer wrote to advise defense
counsel that plaintiff was now available to
complete her deposition.
Mr. Kramer also falsely states that his
own deposition was completed on October 20,
1994, and that defense counsel acknowledged
so on the deposition transcript. In fact, as the
deposition transcript reflects, the deposition
session, which lasted something over an hour,
ended at Mr. Kramer’s request because he
claimed that he was “fading.” Defense coun-
sel estimated that he had an hour more of
questions and asked Mr. Kramer to advise
him at his first opportunity for a date on
which the deposition could be completed. Mr.
SS
12a
Kramer never made himself available for the
completion of his deposition and no further
session was ever held.
Mr. Kramer also falsely states that all IRS
authorization forms that had been requested
had been provided. The [RS requires recently
executed forms with original signatures and a
current address, as plaintiff's counsel was ad-
vised in December 1994. Plaintiff never pro-
vided such authorization forms.
Mr. Kramer also falsely asserts that he pro-
vided defendants’ counsel with all authoriza-
tions that had been requested. It appears that
the plaintiff executed authorizations for re-
lease of records by her accountants and thera-
pists on October 26, 1994, and provided them
to Mr. Kramer. Mr. Kramer never provided
the therapist authorizations to defense coun-
sel, did not send them to the therapists until
February 1995 at the earliest, and did not in-
form defense counsel that they had ever been
executed until he attached them as exhibits to
his affidavit in opposition to the motion to
dismiss. Defense counsel had wnitten four
letters between November 1994 and January
1995 inquiring about the therapist authoriza-
tions.
Finally, Mr. Kramer falsely asserts that
plaintiff served “full and complete interroga-
tory answers on May 26, 1994, [and] defense
13a
counsel has pointed to no deficiency in those
answers.” The answers served on May 26,
1994, almost a month after Judge Patterson’s
order them to be served, were unswom and
signed only by the attorney for the plaintiff.
By letter dated May 27, 1994, defense counsel
enumerated several deficiencies in the May
26, 1994, interrogatories, including the omis-
sion of plaintiffs signature and the failure to
respond to questions. At the July 7, 1994,
conference, Judge Patterson ordered plaintiff
to serve by July 15, 1994, interrogatory an-
swers in one complete document signed by
plaintiff and in the form required under the
Federal Rules of Civil Procedure. On July 18,
1994, plaintiff served two separate docu-
ments, which were unsigned by plaintiff. On
September 6, 1994, plaintiff provided a
document entitled Verification of Plaintiff's -
Interrogatory Answers. To date, interrogatory
| answers that comply with Judge Patterson’s
July 7, 1994, Order and the Federal Rules of
Civil Procedure have not been served.”
Opinion and Order at 13-14.
st RAPS tal tats nh eo
* - *
“***In response to the motion to dismiss, Mr.
Kramer repeatedly misrepresented the history
of discovery in this case in an effort to de-
ceive the Court regarding his and his client’s
io chetseleptieceninlgaeianectiniersypmeminian
side Nenana aac tm i i es A a a aca
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failure to comply with virtually every Court
Order issued in this case.” (id at 17)
Judge Cote also found that “plaintiff and her attorney
have willfully failed to comply with legitimate discovery
demands in violation of Court Orders issued on November
19, 1993 (setting orginal discovery schedule), April 28,
1994, April 29, 1994, July 7, 1994, October 14, 1994, and
November 10, 1994, resulting in substantial and irreparable
prejudice to the defendants.” Opinion and Order at 16.
She also found:
“*** The conduct of the plaintiff and her
counsel, which as detailed above, consisted of
persistent and unexcused disregard of Judge
Patterson’s and this Court’s discovery Orders,
can only be characterized as willful and re-
flecting their disregard to “the integrity of the
discovery process and, indeed, the integrity of
the Court.”
id at 19 (citation omitted) and
“***With respect to Mr. Kramer’s own cul-
pability, his false statements to the Court
alone would justify monetary sanctions
against him.” (id at 21)
Respondent’s testimonial defense appears to address only a
portion of Judge Cote’s findings of Respondent’s improprie-
ties. .
We took under advisement the results of a polygraph ex-
amination conducted of Respondent by Daniel J. McBride.
lSa
The polygraph examination was directed to the question as to
whether or not Respondent “knowingly and intentionally
misled Judge Cote in the Selby matter. The opinion was that
he was truthful when he denied having done so.
We took the polygrapher’s testimony over the objection
of the staff and their citation to People v. Scott, 68 N.Y.2d
888, 891 (1996) and Matter of Jeffrey Lassoff, 231 A.D.2d
229, 659 N.Y.S.2d 254 (1st Dept., 1997). Our reasoning was
that the admissibility of polygraph evidence was then before
the United Sates Supreme Court. On March 31, 1998, the
Supreme Court upheld a Military Rule of Evidence ban on
all polygraph evidence as consistent with the Constitution.
United States v. Scheffer, 118 S.Ct. 1261 (1998). Although
Respondent’s proffer here was for a more limited purpose
and we would ordinarily be persuaded by such testimony as
bearing upon intent, we believe in this instance our reliance
upon such evidence would contravene the current state of
New York law, go beyond our mandate of recommending an
appropriate sanction, and challenge the validity of Judge
Cote’s determination that Respondent intentionally misled
her in Selby as to which Respondent is collaterally estopped.
During Respondent’s testimony, he maintained that he
notified Judge Cote in the Selby matter that he had erred in
one of the statements which the Judge found untrue. He said
that he was certain that he had notified the Judge of his error.
Respondent represented that he would produce the letter in
which he notified Judge Cote. No such letter was produced
although Respondent was given two weeks from the conclu-
sion of the Hearing to produce it. We can only conclude that
no such letter exists. We give the Respondent the benefit of
the doubt that he did not intentionally misrepresent to the
Panel the existence of this letter.
l6a
Respondent was cross-examined about an interview he
gave reported in Lawyer’s Weekly USA (Staff Exhibit
(“SX”) 4). Respondent does not deny the accuracy of a quote
attributed to him that the findings made in the cases in which
he was sanctioned were for “chicken shit stuff’ and that he
analogized his ethical behavior to that of Charles Barclay,
apparently a professional basketball player who is on occa-
sions ejected from games. Respondent says his conduct is
“part of being a tough litigator.” (Tr. 201). Respondent ex-
plained his view of his sanctioned conduct:
“But as you’re playing rough and trying to
win a Case, sure, you might file an interroga-
tory answer late. or in your zeal to win your
case, you might give an improper summa-
tion.” (Tr. 210)
Respondent relies extensively on the distinction which he
articulated:
“You'll never find sanctions saying I de-
stroyed documents or pressured witnesses to
falsify documents. You’ll never find sanctions
saying | conspired with my client.” (Tr. 203)
In the latter he is correct; but both his prior statements and
his explanations of them lack even the hint of remorse.
We reject the Staff's contention that Respondent lied
about changing his stationery following his suspension in
New Jersey. Through an apparent glitch in the regulatory
system, suspension by a State does not automatically result
in suspension in the Federal courts of that State. It is on this
17a
distinction that Respondent relies to explain his stationery.
(Tr. 195-97).
In sum, we are struck by the similarity between Respon-
dent’s defense of himself in these proceedings with his con-
duct in the representation of others; he makes representation
of fact which appear to be unfounded or not followed up, in
this case the so-called notification to Judge Cote of at least
one error in his affidavit; he fails to complete professional
obligations timely, in this case the failure to provide the
promised additional exhibits and the failure to submit post-
hearing findings putting yet an additional burden on the
Panel.
Respondent’s Prior Disciplinary History
Respondent has previously received a public censure and
a private reprimand from the Appellate Division and a public
reprimand from the Supreme Court of New Jersey.
In Matter of Kramer, 193 A.D.2d 222 (lst Dept. 1993),
Respondent was censured on the basis of a reciprocal disci-
pline matter from New Jersey. Respondent represented a
father and daughter in a New Jersey action but was disquali-
fied pursuant to a Court Order. Nevertheless, Respondent
continued to act for his clients despite the disqualification
order. The New Jersey Court also found this distinction that
Respondent relies to explain his stationery. (Tr. 195-97
In sum, we are struck by the similarity between Re
spondent’s defense of himself in these proceedings with his
conduct in the representation of others; he makes representa-
tion of fact which appear to be unfounded or not followed
up, in this case the so-called notification to Judge Cote of at
least one error in his affidavit; he fails to complete profes-
sional obligations timely, in this case the failure to provide
18a
the promised additional exhibits and the failure to submit
post-hearing findings putting yet an additional burden on the
Panel.
Respondent’s Pnor Disciplinary History
Respondent has previously received a public censure and
a private reprimand from the Appellate Division and a public
reprimand from the Supreme Court of New Jersey.
In Matter of Kramer, 193 A.D.2d 222 (lst Dept. 1993),
Respondent was censured on the basis of a reciprocal disci-
pline matter from New Jersey. Respondent represented a fa-
ther and daughter in a New Jersey action but was disqualified
pursuant to a Court Order. Nevertheless, Respondent contin-
ued to act for his clients despite the disqualification order.
The New Jersey Court also found Respondent failed to coop-
erate with their investigation and that he neglected his cli-
ents’ case. SX 1.
The New Jersey public repnmand appears at In the Matter
of Steven M. Kramer, 130 N.J. 536, 617 A.2d 663, 1993 N.J.
Lexis 10 (1993).
Respondent’s private repnmand also arose from a recip-
rocal disciplinary matter. It involved an appeal to the United
States Court of Appeals for the Third Circuit. Respondent
inserted a Brief in the appellate record that was not part of
the record below. The Third Circuit accepted Respondent’s
claim that his misconduct was negligent. Its report, however,
found that Respondent failed to acknowledge that the bref in
question had not been filed with the District Court, even
though his adversary had brought that fact to Respondent’s
attention. (SX 2C).
19a
Prior Judicial ctions, Cnticisms and Admonitions
The Staff relies upon 13 reported opinions in which Re-
spondent was sanctioned, criticized or admonished in various
litigations. They are collected as Panel Exhibit (“PX”) 30.
The prior instances are:
re da RNC ie ge en re NS mame, ete
nn mrernanpat sa! Ataris Ae me ee
Hansel v. Shell Oil Co., 169 F.R.D. 303 (E.D.
Pa. 1996);
Kramer v. Tribe, 156 F.R.D. 96 (D.N.J. 1994)
aff'd, 52 F.3d 315 (3rd Cir. 1995), cert. de-
nied, 516 U.S. 907 (1995); Respondent was
sanctioned for attempting to extort a legal fee
by making statements to the press that were
calculated to prejudice an ongoing court pro-
ceeding;
Vangarelli v. Witco, 808 F.Supp. 387 (D.N.J.
1992);
Fineman_v. Armstrong, 774 F.Supp. 266
(D.N.J. 1991); aff'd in part and rev’d in part;
980 F.2d 171 (3rd Cir. 1992);
Matthews _v. Freedman, 128 F.R.D. 194
(D.D.Pa. 1989); aff'd, 919 F.2d 135 (3rd Cir.
1990)
Seifert v. Green, 1987 WL 13739 (E.D.Pa.
1987);
20a
° International Mining Co. v. Allen, 567
F.Supp. 777 (S.D.N.Y. 1987);
° In re E.F. Hutton Banking Practices Litiga-
tion, 663 F.Supp. 123 (S.D.N.Y. 1987);
- ° Silverman _v. Weil, 662 F. Supp. 1195
(D.D.C. 1987); aff'd, 839 F.2d 824 (D.C. Cir.
1988)
° Kravinsky v. Wolk, 1988 WL 84748 (E.D.Pa.
1988); aff'd, 869 F.2d 589 (3rd Cir. 1989);
° Schwartz v. Hospital of the Univ. of Pennsyl-
vania, 1989 WL 64286 (E.D.Pa. 1989)
° Getaway Travel v. City of Philadelphia, 1989
WL 24859 (E.D.Pa. 1989); and
° Astron Venture Corp. v. Nationwide Lending
Co., 1989 WL 35414 (E.D.Pa. 1989).
The Panel’s Assessment of
The Pnor Sanctions, Criticisms and Admonitions
These 13 instances are not of equal gravity. The following
is Our prioritization of them in descending order of serious-
ness. We rely solely upon the reported opinions, either in the
West Reporter system or LEXIS.
Kramer v. Tnbe (1994)
This was a lawsuit initiated by Respondent against appel-
late counsel for the same client, Lightning Lube, concerning
ee ee
2la
access to the proceeds of a judgment filed with the court by
the defendant in the underlying litigation. Respondent sued
Laurence Tribe, appellate counsel and a professor at the Har-
vard Law School. An Amended Complaint added three indi-
vidual defendants also at the Harvard Law School. Kramer
himself had a fee dispute with Lightning Lube and its princi-
pal which was settled with a provision that Respondent
would receive 25% or any amount appellate’s counsel fee
was reduced from $2.75 million. The suite against Tribe
followed.
The District Court dismissed Kramer’s Complaint on an
alternate basis of his conduct of the litigation, referred the
matter to the Chief Judge of the Federal District Court of
New Jersey, to the Office of Attorney Ethics for the State of
New Jersey for disciplinary proceedings, referred possible
violations of State and Federal criminal laws to the United
States Attorneys for both the Southern District of New York
and the District of New Jersey, and ordered Kramer to pay
some of the defendants $70,289.00 for their attorneys fees
and costs. 156 F.R.D. at 111.
Respondent’s sanctionable conduct including threatening
lawsuits and unfavorable publicity if appellate counsel did
not reduce their fees to $600,000. Respondent threatened to
go “to the press and ruin Mr. Tribe’s reputation and provide
damaging information about Professor Tribe to Senator
Hatch.” 156 F.R.D. at 102. Kramer carried out at least a por-
tion of the threat by sending copies of his Complaint to
newspapers and journals. Articles appeared in the Harvard
Crimson, Harvard Law Record, Wall Street Journal and New
Jersey Law Journal. 156 F.R.D. at 103.
In the course of its Opinion, the Court summarized 36
publicly reported instances of Respondent’s violations of
rules of professional conduct. We reprint here the court’s
22a
recitation, although there is repetition of the 13 individual
cases we analyze below, 156 F.R.D. at 104-109:
(1) In Giordano v. Witzer, 558 F. Supp. 1261, 1262
(E.D. Pa. 1983), the plaintiff, who was represented by
Kramer, had his Complaint dismissed. Chief Judge
Luongo opined that: “The pleadings in this case are,
to say the least, fnghtful. In excess of one hundred
pages of exhibits are appended to the amended com-
plaint. Included in this morass of paper are the
agreement of sale for Seller’s assets and the support-
ing documentation.” Id. at 1262. The court concluded
that the agreement clearly demonstrated the parties,
desire to litigate any disputes over the agreement in
the Court of Common Pleas for Delaware County,
rather than a federal district court, and dismissed the
amended compiaint accordingly.
(2) In International Mining Co. v. Allen & Co., 567
F. Supp. 777, 789-90 (S.D.N.Y. 1983), Judge Sweet
dismissed international Mining =Company’s
(“IMCO’s’’), Complaint under Federal Rule of Civil
Procedure 37(b)(2)(C), for failure to respond to dis-
covery. Kramer was IMCO’s counsel. In making his
ruling, Judge Sweet stated that:
“IMCO’s complete failure to produce docu-
ments, after representation of its counsel in
open court that production was forthcoming,
can only be described as willful and shows its
disrespect not only for its discovery obliga-
tions, but also for this court. Its intransigence
in supplying adequate answers to Allen’s in-
23a
terrogatories rises at least to the level of gross
negligence.” Id. at 789.
(3) In LeMaster v. Bull, 581 F. Supp. 1170, 1173
(E.D. Pa. 1984), the Honorable Louis H. Pollack,
U.S.D.J., assessed attorney’s fees under 15 U.S.C.
§ 77k against defendants represented by Kramer, due
to the clear lack of merit and frivolous nature of the
defenses raised.”
(4) In Rubin v. Buckman, 727 F.2d 71, 72 (3d Cir.
1984), the Third Circuit vacated the district court’s
order, but affirmed its finding that “plaintiff or his
attorneys [Kramer among them] had either intention-
ally deceived the court, ‘so as to be in a position to
nullify any adverse judgment,’ or had been reckless,
and in either event had committed ‘a flagrant viola-
tion’ of Fed. R. Civ. P. 11.”
(5) In Caplan v. Fairchild Publications Corp., 13 Me-
dia L. Rep. 1571, 1573, 1986 WL 10782 (E.D. Pa.
1986), aff'd 815 F.2d 693 and 815 F.2d 694 (3d Cir.
1987), the district court dismissed plaintiff's com-
plaint in accordance with Federal Rule of Civil Pro-
cedure 37(b), finding that “the record establishes
willful disobedience and bad faith on the part of
plaintiff and his counsel,” in providing discovery and
failing to abide by the court’s orders. The Court fur-
ther found that “the imposition of attorney’s fees in-
curred by defendant is not an effective deterrent,” as
that sanction had twice been imposed “with no appar-
ent effect.” Id.
24a
(6) In Pearline Gregory v. Saks & Co., 1986 WL
10666, No. 85-1853, slip. op. (E.D. Pa. Sept. 25,
1986), the district court criticized Kramer for accus-
ing defendants’ witnesses of perjury in his summa-
tion, advising him at a sidebar colloquy with counsel,
that “this is not the way we try a case in federal
court.”
(7) In In re E.F. Hutton Banking Practices Litigation,
663 F. Supp. 123, 125 (S.D.N.Y. 1987), the court
dismissed a fraud/RICO complaint filed by Kramer,
given “the absence of any colorable allegation of mis-
representation, omission or deceptive conduct of any
kind.”
(8) In Silverman v. Weil, 662 F. Supp. 1195, 1201 &
n. 14 (D.D.C. 1987) aff'd without opinion, 839 F.2d
824 (D.C. Cir. 1988), the court dismissed another
fraud/RICO complaint filed by Kramer after he had
“been given four opportunities to draft an adequate
complaint” and had repeatedly “made gross and mis-
leading misrepresentations in various pleadings and
statements to this Court.”
(9) In Seiffert v. Green, 1987 WL 26670, Civ. No.
81-1956, slip op. (E.D. Pa. Dec. 8, 1987) the court
both assessed attorney’s fees and costs against
Kramer and limited his client’s proof at trial as sanc-
tions for Kramer’s “noncompliance with discovery
requests and this Court’s Order.”
(10) Also in Seiffert v. Green, 1988 WL 2068, Civ.
No. 81-1956, slip. Op. (E.D. Pa. Jan. 13, 1988), the
25a
court noted that a fee application submitted by
Kramer made statements “directly contradictory” to
those he made in open court, concerning whether he
had written a 20-page brief, and finding it “utterly in-
comprehensible” that it took Kramer 4.8 hours to
prepare a “scratched out and pasted up brief” of 8
pages drawn from a boilerplate motion in another
case.
_
(11) In Kravinsky v. Wolk, 1988 WL 84748, Civ. No.
86-4820, slip. Op. (E.D. Pa. Aug. 11, 1988), aff'd
without opinion, 869 F.2d 589 (3d Cir. 1989), the
court stated that Kramer’s “failure to comply with or-
ders and rules of this court,” including his failure to
attend a scheduled court appearance or offer any ex-
planation for his absence, would fully justify impos-
ing sanctions on him, but declined to impose sanc-
tions given absence of proof that his client acquiesced
in the wrongdoing.
26a
(14) In Getaway Travel, Inc. v. City of Philadelphia,
1989 WL 24859, Civ. No. 88-3126, slip. op. (E.D.
Pa. Mar. 15, 1989) the district court dismissed an an-
titrust action in which the court found that Kramer’s
client could not possibly succeed, where Kramer had
asserted state law claims having “no basis in law.”
(15) In Gray v. Home Shopping Network, Inc., 1989
WL 52439, Civ. No. 88-5159, slip. op. (E.D. Pa. May
17, 1989), the district court granted summary judg-
ment against the plaintiff, represented by Kramer, be-
cause he offered only hearsay evidence in opposition
to the motion. The court noted that “it is at least
questionable whether the claim for punitive damages
... could have been made in good faith.”
(16) In Matthews v. Freedman, 128 F.R.D. 194, 202-
04 (E.D. Pa. 1989), aff'd sub nom., Appeal of
Kramer, 919 F.2d 135 (3d Cir. 1990), the district
court reprimanded Kramer and ordered him to pay
$9,404.53 in attorneys’ fees for advancing “frivolous
legal assertions.” The court also referred the matter to
the disciplinary review board of the Supreme Court
of Pennsylvania for whatever action they deemed ap-
propriate. In imposing sanctions and reprimanding
Kramer, Judge Gawthrop stated that “[rjeview of
public court orders and opinions reveals that attorney
Kramer, individually or jointly with his clients, has
been sanctioned on numerous occasions for violations
of the Federal Rules, including Rule 11.” (citations
omitted).
27a
(17) In Matthews v. Freedman, 882 F.2d 83 (3d Cir.
1989), the Third Circuit fined Kramer $250.00 for re-
fusing to concede an appeal in light of a Supreme
Court decision “patently dispositive of the issues.”
The Third Circuit stated further that “[t]he absence of
a specific appellate rule comparable to Fed. R. Civ. P.
11 does not give counsel the privilege to file a frivo-
lous appeal or maintain one after subsequent and
binding precedent demonstrates that the appeal no
longer has merit,” and warned Kramer that it would
“not hesitate to apply sanctions in a sequential man-
ner” against him in the future.
(18) In Schwartz v. Hosp. of the Univ. of Pennsviva-
nia, 1989 WL 64286, Civ. No. 88-4865 (E.D. Pa.
June 12, 1989), the district court awarded the defen-
dants attorneys’ fees and costs based upon a finding
that Kramer and his client had both “acted in bad
faith” in attempting to renege on a settlement agree-
ment.
(19) Again in the matter of Schwartz v. Hosp. of the
Univ. of Pennsylvania, 1989 WL 80322, Civ. No. 88-
4865 (E.D. Pa. July 18, 1989), the district court stated
that “[t}he plaintiffs, along with Kramer, have unrea-
sonably increased the cost of litigation in this mat-
ter.” (20) In Cellar Door Productions, Inc. v. Kay,
897 F.2d 1375, 13779 & n. 3 (6th Cir.) cert. denied
498 U.S. 819, 111 S. Ct. 64, 112 L. Ed. 2d 38 (1990),
the Sixth Circuit affirmed an award of attorneys’ fees
and costs for the failures of plaintiff's counsel,
Kramer, to disclose the related prior action “in viola-
28a
tion of the rules of this Court and the clear directives
of the [filing] form.”
(21) In Lightning Lube, Inc. v. Witco Corp., Civ. No.
87-3243, slip op., 9-11 (D.N.J. May 4, 1990), the
Honorable Jerome B. Simandle, U.S.M.J. (now Dis-
trict Judge Simandle), sanctioned Kramer for obtain-
ing “proprietary and confidential” information from
Witco that he was under court order not to disclose,
and then “violat{ing] the court’s protective order” by
leaking it to the press. Kramer was ordered to pay
Witco’s attorneys’ fees and costs because of his
“harassing misuse of discovery.” The court noted that
Kramer’s actions were apparently “calculated to har-
ass and harm Witco, with the hope of possibly co-
ercing favorable settlement from Witco, based upon
the prominent disclosure of confidential informa-
tion,” and that he had ignored explicit warnings from
his adversaries to avoid such conduct.
(22) For a third time in the matter of Schwartz v.
Hosp. of the Univ. of Pennsylvania, 1990 WL
198750, Civ. No. 88-4865 (E.D. Pa. Nov. 30, 1990),
Kramer’s clients were sanctioned and prohibited from
introducing designated matters into evidence after re-
peated failures to respond to discovery.
(23) In a matter emerging from Flip Side Productions
v. Jam Productions, 1991 WL 61467, Civ. No. 82 C
3684 (N.D. Ill. April 16, 1991), after Kramer’s for-
mer clients, Flip Side, brought an action against him
to pay in excess of $90,000.00 in Rule 11 sanctions
for a frivolous RICO/antitrust suit, Kramer moved to
29a
disqualify Flip Side’s new attorney on the grounds
that he supposedly represented Kramer as well. In
denying the motion, the district court noted that the
baseless motion was “somewhat bizarre” and “‘at best
disingenuous.”
(24) In the district court’s decision on the merits of
Flip Side’s action against Kramer in Flip Side Pro-
ductions v. Jam Productions, 1991 WL 277617, Civ.
No. 82 C 3684 (N.D. Ill. Dec. 20, 1991), it found in
Flip Side’s favor and against Kramer, “as it is and
always has been clear that Kramer was the principal
architect of plaintiff's misguided efforts” to continue
to pursue frivolous litigation.
(25) In Fineman v. Armstrong World Industries, Inc..,
774 F. Supp. 266, 269, 274-75 & nn. 13-16 (D.N_J.
1991) aff'd in relevant part, 980 F.2d 171 (3d Cir.
1992), the district court noted that “Kramer’s conduct
throughout the course of this trial has led to the impo-
sition of a restraining order, consideration of motions
for mistrial, delays resulting therefrom, and more,”
and ultimately concluded that “that plaintiffs’ counsel
deliberately set out to sabotage Armstrong’s defense
in every way possible, without regard to rules of con-
duct, rules of law, and orders and directions from this
Court.”
This court also noted that:
“In a further, bizarre development which just came to
the Court’s attention, a circumstance which might
even be considered humorous if presented in isola-
30a
tion, the Court has learned that, since October 11,
1990, Mr. Kramer has been unauthorized to practice
law in the State of New Jersey for failure to make his
required contributions to the Client’s Secunty Fund.
Considered in the context of Mr. Kramer’s other con-
duct in connection with this case, however, both in-
side and outside the courtroom, this development is
but further evidence of Mr. Kramer’s complete disre-
gard for rules and procedures governing the proprie-
tary and civility of an attomney’s conduct. Regretfully,
his transgressions of this sort have not been limited to
the present matter.”
Id at 275. (citations omitted).
(26) Again in Lightning Lube, Inc. v. Witco Corp.,
Civ. No. 87-3243, slip op., 3-4 (D.N.J. June 19,
1991), Kramer was sanctioned, this time for writing
to the Security [sic] Exchange Commission, in viola-
tion of Local Rule 36, with a prediction that Witco
could suffer a $200+ million verdict. The Honorable
Joseph H. Rodnguez, U.S.D.J., entered an order
compelling Kramer to cease such conduct in order to
“guarantee the defendant a fair trial by a panel of im-
partial jurors,” observing that “[o]n two prior occa-
sions Kramer was ordered by courts in this District to
abide by Rule 36.” Judge Rodriguez charactenzed
Kramer’s intolerable behavior as indicative of a
“settle or I will tell’ philosophy” through actions
which “reflect an intent to threaten and coerce a set-
tlement and to disseminate to the public the amount
of damages he claims will be recovered.”
3la
(27) In Kingsepp v. Wesleyan University, 142 F.R.D.
597, 600, 602 (S.D.N.Y. 1992), the district court dis-
qualified Kramer from serving as class counsel given
“his documented failures to comply with . . . court
orders, statutory requirements, and the Federal Rules
of Civil Procedure,” and his pervasive misconduct in
the case. The court stated that Kramer “is not an at-
torney to be entrusted to conduct the proposed litiga-
tion.”
(28) For a third time in Lightning Lube, Inc. v. Witco
Corp., 802 F. Supp. 1180 (D.N.J. 1992), Kramer’s
misconduct was at issue. In its motion for a new trial,
Witco relied upon Kramer’s improper conduct. Al-
though this Court denied Witco’s motion, there was
not doubt in the Court’s mind that Kramer had, in
fact, approached witnesses in an attempt to improp-
erly influence their testimony. Id. at 1201, n. 10.
(29) Also in Lightning Lube, Inc. v. Witco Corp., 144
F.R.D. 662, 668, 671 (D.N.J. 1992), this Court was
faced with Lightning Lube’s motion for attomey’s
fees and costs, filed by Kramer against Witco, for its
allegedly unfounded assertion of a counterclaim. This
Court denied Lightning Lube’s motion in light of
Kramer’s own “pernicious” and “egregious miscon-
duct” at trial.
(30) In Schwartz v. Steven Kramer and Associates,
Civ. No. 90-4943 (E.D. Pa. Sept. 30, 1992), the dis-
trict court denied Kramer’s motion to dismiss his
former client’s malpractice action against him, find-
ing that the complaint adequately stated a cause of
32a
action against Kramer “arising from a purported
fraudulent scheme to induce plaintiffs into settling
litigation.”
(31) In Vangarelli v. Witco Corp., 808 F. Supp. 387,
389-90 & n. 4 (D.N.J. 1992) the district court was
forced to “direct its resources to deciding . . . a mo-
tion for recusal, when even a cursory investigation of
the facts would have revealed the spuriousness of the
allegations.” Kramer claimed that former Governor
Byrme, a member of defense counsel’s firm, had ap-
pointed Judge Rodriguez to a commission, when, in
fact, Judge Rodnguez had been appointed by another
governor. In denying the motion, Judge Rodriguez
noted that “this is not the first time Mr. Kramer has
alleged that I have a conflict of interest, based on pat-
ently erroneous grounds.”
(32) In In the Matter of Steven M. Kramer, 130 N.J.
536, 617 A.2d 663 (1993), Kramer was publicly rep-
rimanded for “gross neglect,” “failure to act with rea-
sonable diligence,” “failure to withdraw as counsel
when discharged,” and “failure to cooperate with the
ethics authonties.”
(33) Again, in Fineman v. Armstrong World Indus-
tries Inc., No. 84-3837, slip. op., 1993 WL 414752
(D.N.J. 1993), the Honorable John W. Bissell,
U.S.D.J., condemned Kramer, holding that his
“actions in contacting the press about a motion which
was objectively baseless, before filing and service
had been accomplished, on the eve of the—annual
meeting [of the defendant’s stockholders], raises the
33a
inescapable inference that he perverted the motion to
harass [the defendant] and/or generate settlement lev-
erage.” Judge Bissell ordered a new trial and required
co-counsel to be prepared to take over the entire case
given the likelihood that during the retrial Kramer’s
“meddlesome, diversionary, malicious communica-
tions” with government and industry organizations,
and his “improper remarks and attacks before the
jury” would resume.
(34) In In the Matter of Steven M. Kramer, 193
A.D.2d 222, 602 N.Y.S.2d 831 (N.Y.A.D. Ist Dept.
1993), Kramer was censured for “acts of professional
misconduct.” The New York Court of Appeals stated
that he “neglected a legal matter entrusted to him,”
“represent(ed] the client after he ha{d] been disquali-
fied by court order,” and “fail{ed] to cooperate with
the disciplinary committee.”
(35) In Lightning Lube v. Kramer, Civil Action No.
93-3878 (JHR), which has since been settled, the
Honorable Jerome B. Simandle, U.S.D.J., entered an
Order to Show Cause with Temporary Restraints
against Kramer, on August 27, 1993, prohibiting him
from forcing his former client, Lightning Lube, into
involuntary bankruptcy. Judge Simandle’s order also
restrained Kramer from divulging any confidential in-
formation about his former client.
(36) Finally, on September 10, 1993, the United
States Court of Appeals for the Third Circuit affirmed
this Court’s decision in the matter of Lightning Lube,
Inc. v. Witco Corp., 802 F. Supp. 1180 (D.N.J. 1992),
34
aff'd 4 F.3d 1153, 1179 n. 15) (3d Cir. 1993). In its
Opinion, the Third Circuit admonished Kramer for
his unethical conduct at tral, stating:
“We do not ignore the seriousness of
Kramer’s attempt to interfere with opposing
witnesses. This conduct threatened to under-
mine the integnity of the trial proceedings and
demonstrated a complete disregard of his ob-
ligations as an officer of the court.”
Lightning Lube v. Witco, 4 F.3d at 1178. After de-
ciding to uphold this Court’s decision to deny the
post-trial motion of Witco Corporation (“Witco”) for
a new tnal on account of Kramer’s improper conduct,
the Third Circuit unequivocally warned Kramer that
through his actions he nsks having claims that he
takes to court dismissed, whether there is prejudice or
not, stating that:
“In these circumstances, even though we do
not think Witco was prejudiced by Kramer’s
conduct, it might well be that we should sim-
ply dismiss this action for reasons of deter-
rence and punishment. . . . [citations omitted].
But after most careful consideration, we have
decided not to take that step because the rem-
edy for misconduct should be decided by the
district court and that court did not dismiss
the case. The message which we do not wish
to send is that misconduct which is not preju-
dicial may never lead to dismissal of a com-
plaint or suppression of defenses.”
35a
Id. at 1179, n. 15.”
Matthews v. Freedman (1989)
Respondent was reprimanded for violating Rule 11 of the
Federal Rules of Civil Procedure, personally sanctioned un-
der 28 U.S.C. § 1927 the amount of $9,404.53 for attorney’s
fees and costs and a copy of the Court’s opinion forwarded to
the Disciplinary Board of the Supreme Court of Pennsylva-
nia for such further action, if any, the Board deems appropri-
ate. 128 F.R.D. at 207-08. The Federal District Judge found
that Respondent pursued an employment discrimination suit
that was time-barred without an adequate legal basis or ar-
gument for a change in the law and after being informed by
his adversary of the deficiencies. The Court found that Re-
spondent “failed to make a reasonable inquiry into any of his
clients’ federal claims before filing the Complaint” 128
F.R.D. at 202 and that “Kramer acted in bad faith by pursu-
ing the Title VII claims after he had received defendants’
May 18 letter.” 128 F.R.D. at 207. The referral to the Disci-
plinary Board was prompted by the Court’s review of Re-
spondent’s then (1989) history of sanctions and violations of
Federal rules. It listed 6 instances. 128 F.R.D. at 302. (All
are included in Kramer v. Tribe, supra.) The District Court
declined to suspend Respondent from practice before the
Federal Court for the Eastern District of Pennsylvania, and
opted instead to refer the matter to the Pennsylvania authori-
ties. 128 F.R.D. 203-04.
We are not provided with any information about any dis-
cipline imposed by the Pennsylvania authorities.
Fineman v. Armstrong (1991)
One of the bases of granting the defendant Armstrong a
new trial was the misconduct of Respondent as Plaintiff's
36a
counsel: “This conduct, particularly the repeated appeals to
sympathy, speculation and passion rather than reason, is un-
doubtedly what produced the jury’s verdict.” 774 F.Supp. at
269. According to United States District Judge Bissell, Re-
spondent’s counsel included Respondent “repeated by jus-
tif[ying] as to his own truthfulness and trust worthiness: al-
though not a witness,” 774 F. Supp. at 270, and, “most
troubling” to the District court, making a “unadorned, dis-
paraging attack upon defense counsel’, id at 271. One
“particularly egregious example of misconduct “was to infer
that one defense counsel either counselled a witness to lie or
engaged in sexual misconduct with a witness.” 774 F.Supp.
at 271. Respondent was warned about his conduct and given
directions by the District Court, which he “repeatedly ig-
nored.” 774 F. Supp. at 271, n. 5. .
Respondent’s conduct during the tnal led to the imposi-
tion of a restraining order and mistrial motions. 774 F. Supp.
at 274. The District Court described Respondent’s conduct as
a “complete disregard for rules and procedures governing the
propriety and civility of an attorney’s conduct.” 774 F.Supp.
at 275. A footnote in the District Court’s Opinion refers to
other sanctions imposed and criticism prior to June, 1991 on
Respondent: Matthew v. Freedman; Rubin v. Buckman, 727
F.2d 71 (3d Cir. 1984); and Schwartz v. Hospital of Univ.
Penn, 1989 WL 64286 (E.D.Pa. 1989). 774 F. Supp. at 274,
n. 16. It also points out that Respondent had been suspended
in New Jersey for failing to make the required contributions
to the Clients’ Security Fund.
Seiffert v. Green (1987)
Respondent as Plaintiffs’ counsel was personally sanc-
tioned and ordered to pay the reasonable attorney’s fees and
costs incurred by the Defendants in moving to compel re-
sponse to interrogatories. The United States Magistrate found
37a
that “there has been no showing that Plaintiffs personally
have contributed to the noncompliance ‘with the Court’s or-
der’.” Although the Magistrate assigned the fault for non-
compliance to Respondent, he nevertheless sanctioned
Plaintiffs by precluding them from utilizing information
which would have been disclosed by compliance with the
interrogatories and document request.
Kravinsky v. Wolk (1988)
Respondent represented Plaintiff on a RICO Complain
which followed unsuccessful litigation against the Plaintiff in
Pennsylvania’s courts for non-payment of a judgment note
given in the purchase and sale of a business which underlay
both litigations.
Respondent after notification failed to appear at a pre-trial
conference with the Court (he sent a substitute who did not
represent the Plaintiff) and failed to comply with a pre-trial
order. The District Court found (1988 WL 84748 at °2):
“The clear indication is that plaintiff's coun-
sel, recognizing the futility of proceeding to
trial with this case, has abandoned the Plain-
tiffs counsel’s failure to comply with orders
and rules of this court would fully justify im-
posing sanctions against counsel. Obviously,
however, in the absence of proof of acquies-
cence or joinder in such conduct by plaintiff.
plaintiff should not be prejudiced by his coun-
sel’s failures. For this reason, this action is not
being dismissed as a sanction or by reason of
any failure on the part of plaintiff's counsel.
The action is being dismissed because res ju-
dicata and collateral estoppel establish that
plaintiff cannot prevail on any of his claims.”
38a
Vangarelli v. Witco (1992)
Respondent moved to disqualify Federal District Judge
Rodriguez on what were described as “patently erroneous
grounds”, of which Respondent was made aware before the
formal recusal motion was made. 808 F.Supp. at 389. No
sanctions were imposed on Respondent.
Silverman v. Weil (1987)
Respondent represented the Plaintiffs, limited partners in
a failed limited partnership which “was the victim of a
fraudulent tax scheme concerned of and perpetrated by one
of its general partners”. 662 F.Supp. 1196. Plaintiffs’ fourth
complaint was dismissed with prejudice (662 F.Supp. at
1201):
“Counsel for plaintiffs has been given four
opportunities to draft and adequate complaint.
In each instance, on clear notice of the insuf- ~
ficiency of their claims, he has failed to cor-
rect the problems. The Third Amended Com-
plaint is still as seriously deficient, as the first
three. Moreover, throughout these proceed-
ings, plaintiffs’ counsel has made gross and
misleading misrepresentations in various
pleadings and statement to this Court.
[footnote omitted] These misstatements taken
in conjunction with a demonstrated inability
to file an adequate complaint compel the
Court to dismiss the present complaint with
prejudice.”
No sanctions were imposed.
International Mining Co. (“IMO”) v. Allen & Co. (1987)
39a
Federal District Court Judge Sweet dismissed IMO’s
Complaint after repeated failures to provide adequate discov-
ery. Respondent represented IMO. Judge Sweet found that
Answers to Interrogatories were not signed or sworn to, both
required by the Federal Rules (567 F.Supp. at 786) and that
representations of its counsel in open court as to document
production were not honored (567 F.Supp. at 788). Prior
monetary sanctions had proved unavailing.
Although the precise role of Respondent in these discov-
ery deficiencies is not detailed in the Opinion, it is fairly in-
ferable from the Opinion that counsel played a role. In all
events, Respondent did not in his defense to the present
charges, proffer as an explanation that the client was solely at
fault.
Caplan v. Fairchild Publications (1986)
Respondent represented the Plaintiff in this libel action. A
senior federal judge dismissed the complaint and sanctioned
the Plaintiff to pay Defendant’s attorney in connection with
the Motion to Dismiss. 1986 WL 10782 at *5.
It is, however, not clear Respondent was responsible for
the Plaintiff's sanctionable conduct. While the Court raises
the possibility of counsel’s involvement with the Plaintiff,
see at *2 and *3, the Court makes the following findings:
“I find that the blatant discovery abuse which
has occurred in this case is largely plaintiff's
personal responsibility.” (at *2)
Somewhat inconsistently, the Court also found: “I con-
clude that the record establishes willful disobedience and bad
faith on the part of plaintiff and his counsel.” (Id at *4)
40a
While not totally free from doubt, we are not inclined to
consider this case as an aggravating circumstance for the Re-
spondent.
Hansel v. Sheil (1996)
Claims of the Plaintiff represented by Respondent were
dismissed as a sanction for failure to provide full and com-
plete answers to interrogatories. No sanction was imposed on
Respondent, nor any criticism directed toward him. Nothing
in the reported opinion (which is all we have) would permit
us to infer that Plaintiffs’ conduct was that of the Respon-
dent.
Getaway Travel v. Philadelphia (1989)
Respondent represented the Plaintiff in an anti-trust action
arising from the denial of a lease at Philadelphia airport to
Plaintiff.
Several complaints were filed. The court comments less
than flatteringly on the draftsmanship. All of the complaints
were dismissed because the “action cannot possibly suc-
ceed."
The District Court does not directly criticize the Respon-
dent, nor are sanctions imposed.
In re E.F. Hutton (1987)
Respondent represented one of two plaintiffs who filed
class action lawsuits against the former brokerage heuse E.F.
Hutton following the latter’s plea of guilty on May 2, 1985 to
2,000 counts of mail and wire fraud. Plaintiff's theory was
different than that on which Hutton was prosecuted. The
Federal District Judge found the theory insufficient and the
complaints were dismissed. 663 F.Supp. at 125. While one
could characterize the allegations as aggressive, there was no
criticism of Respondent and no sanctions were imposed.
Astron Venture v. Nationwide Leasing (1989)
4la
Respondent represented the Plaintiff. A defendants’ ver-
dict was rendered after trial. The opinion is the District
Court’s denial of Plaintiff's motion for new trial.
The District Court denied the motion finding it “lacks
even semblance of merit” and that Plaintiffs “argument is
fanciful, to put it kindly.”
No direct criticism is made of Respondent. No sanctions
were imposed.
The Appropriate Sanction
The Staff urges that Respondent be disbarred, citing In re
Ghobashy, 185 A.D.2d 23, 592 N.Y.S. 2d 322 (Ist Dept.
1993) cert. denied, 510 U.S. 1045 (1994); In re Friedman,
196 A.D.2d 280, 609 N.Y.S.2d 578 (1st Dept. 1994) cert.
denied, 513 U.S. 820 (1994); In re Mason, 208 A.D.2d l,
621 N.Y.S. 2d 582 (lst Dept. 1995); In re Kranis. 219
A.D.2d 278, 640 N.Y.S. 2d 523 (1st Dept. 1996); and In re
Evangelista, 233 A.D.2d 1, 662 N.Y.S. 2d 48 (Ist Dept.
1997). Respondent argues the sanction should be more than
the six months imposed in New Jersey (Tr. 218).
Neither the-Selby matter nor the DeLuca matter warrant
disbarment either individually or collectively. The New Jer-
sey Court before whom the DeLuca matter was litigated, im-
posed a six-month suspension. Judge Cote in Selby v. Arms
imposed monetary sanctions on Respondent and from all that
appears, did not refer the matter to the disciplinary processes
of the Southern District of New York. Nevertheless, Judge
Cote made findings that Respondent made at least four false
assertions in his affidavit in opposition to the motion to dis-
miss.
More troubling is the lengthy list of matters in which Re-
spondent has been sanctioned, criticized or admonished. Re-
42a
spondent’s conduct in Kramer v. Tmbe, is the most serious.
His tactics were most unprofessional. Frankly put, he used a
lawsuit as a weapon in a battle for personal enrichment.
Matthews v. Freedman involved Federal Rule 11 sanctions
for pursuing a meritless law suit in bad faith. Fineman v.
Armstrong involved the granting of a new tnal based in part
on Respondent’s summation. Kravinsky v. Wolk involved a
failure to appear at a pre-tnal conference and sending a sub-
stitute. Vangarelli v. Witco involved a motion to disqualify a
federal judge on “potentially erroneous grounds” of which
Respondent was made aware before the application. As to
the remainder, none appear as serious as those we have out-
lined; in some it is not possible to ascribe the misconduct to
Respondent, as opposed to his client. Nevertheless, with the
Selby and DeLuca matter, there are 38 reported instances
during 11 years in which Respondent has been sanctioned,
criticized, admonished either solely or with his client by over
50 different federal and state judges, by our count.
With such a history, we have very little discretion with
respect to the sanction, given the Appellate Division’s deci-
sion in In re Mason, 208 A.D.2d 1, 621 N.Y.S.2d 582 where
disbarment was imposed upon sustaining 66 of 71 charges
involving 20 clients over six years. Many of the charges in
Mason involved neglect of matters, rather than in Respon-
dent’s case a litigation tactic which involves the intentional
“pushing of the envelope” with respect to compliance with
discovery obligations. It may be “chicken shit” to Respon-
dent, but the civil and criminal administration of justice, as
we currently know it depends upon counsel complying with
discovery demands. If we are wrong as to the meaning of
Mason, the Appellate Division can correct us.
Were we writing on a clean slate, we would be more leni-
ent to Respondent. We would be inclined to suspend Re-
43a
spondent for three years with special conditions. It is not un-
reasonable to assume that in view of his history, Respondent
for three years with special conditions. It is not unreasonable
to assume that in view of his history, Respondent has not
been given the benefit of any “close calls” of which all liti-
gators have been, and hope to continue to be, the beneficiary.
Certainly, the cases cited to us other than Mason involved
false testimony which we have not found here. We ascribe
the falsity of Respondent’s assertions more to carelessness
than to venality, more to a practice of perceived certainty
than to deliberate falseness. Selby is a perfect example. Re-
spondent asserted facts (the completion of certain deposi-
tions) with reckless disregard. He is correct that it is the
height of foolishness to represent the completion of a depo-
sition when the contrary is so readily provable. But represent
it he did. His belief that it was not intentionally false proba-
bly led to Respondent’s passing the polygraph exam.
But putting aside our non-professional psychological
analyses, the fact remains that Respondent has engaged in a
pattern of disruptive and serious misconduct, has little, if
any, remorse, and if we were to credit the judicial officers in
the underlying 38 episodes, Respondent could well have
been guilty of multiple violations of DR 1-102(a)(4)
[engaging in conduct involving misrepresentations], DR1-
102(a)(5) [engaging in conduct that is prejudicial to the ad-
ministration of justice], DR 1-102(a)(8) [engaging in conduct
that adversely reflects on a lawyer’s fitness to practice law],
DR 70-102(a)(1) knowingly filing a lawsuit that will merely
serve to harass or maliciously injure another] and DR 7-
102(a)(7) [knowingly advancing a claim that is unwarranted
under existing law].
ee ee ee
44a
Since our charge is merely to make a recommendation as
to a sanction, we reluctantly recommend that Respondent be
disbarred.
Respectfully submitted,
May 15, 1998 /s/
Otto G. Obermaier, Esq.
Chair, Hearing Panel X
45a
APPENDIX D.
LAWYERS WEEKLY USA, November 4, 1996
Solo Sues Law Firms for Tobacco Cover-Up
Alleges Lawyers Conspired to Hide Health Risks
The Right Man for the Job?
Kramer’s ‘Rambo’ Style Draws Ethics Complaints
“The findings were for chick-shit stuff,” he
says. “Charles Barkley has 120 technical fouls
and ejections in his career and he’s still a
premier player. Sanctions are like getting
thrown out of a game, it’s part of playing
tough.”
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.