Grievance Comm. for the Tenth Judicial Dist. v. Koper (In re Koper)

171 N.Y.S.3d 585

In the MATTER OF Michael William KOPER, an attorney and counselor-at-law.

Grievance Committee for the Tenth Judicial District, petitioner;

v.Michael William Koper, respondent.

(Attorney Registration No. 5107073)

2019-08547

Supreme Court, Appellate Division, Second Department, New York.

July 20, 2022

Catherine A. Sheridan, Hauppauge, NY (Michael Fuchs of counsel), for petitioner.

Michael William Koper, Huntington, NY, respondent pro se.

HECTOR D. LASALLE, P.J., MARK C. DILLON, COLLEEN D. DUFFY, BETSY BARROS, REINALDO E. RIVERA, JJ.

OPINION & ORDER

PER CURIAM.

The Grievance Committee for the Tenth Judicial District served the respondent with a verified petition dated June 9, 2019, containing two charges of professional misconduct predicated on the respondent's admissions set forth in an October 26, 2015 stipulation, and the findings made by the United States Bankruptcy Court, Eastern District of New York, in two orders, both dated October 30, 2015, and a judgment, also dated October 30, 2015, in a Chapter 7 bankruptcy proceeding commenced by the respondent in that court, under Case No. 8-13-74213, and related adversary proceedings. After a hearing on January 19, 2021, the Special Referee submitted a report dated February 19, 2021. The Grievance Committee now moves to confirm the Special Referee's report and to impose such discipline upon the respondent as the Court deems just and proper. The respondent has submitted an affidavit in response, in which he does not oppose the findings of the Special Referee.

The Petition

The petition alleges that the respondent knowingly offered or used evidence that he knew to be false in a court proceeding (charge one), in violation of rule 3.3(a)(3) of the Rules of Professional Conduct ( 22 NYCRR 1200.0 ), and engaged in conduct that is prejudicial to the administration of justice (charge two), in violation of rule 8.4(d) of the Rules of Professional Conduct, based upon the following factual specifications:

On August 14, 2013, the respondent commenced a Chapter 7 bankruptcy proceeding in the United States Bankruptcy Court, Eastern District of New York (hereinafter the Bankruptcy Court) (Case No. 8–13–74213). Thereafter, three adversary proceedings were commenced by creditors against the respondent to determine non-dischargeable debts, to wit: International Christian Broadcasting, Inc. v Michael W. Koper, Case No. 13–08167; Trinity Christian Center of Santa Ana, Inc. v Michael W. Koper, Case No. 13–08168; and International Christian Broadcasting, Inc., and Trinity Christian Center of Santa Ana, Inc. v Michael W. Koper and Brittany Koper, Case No. 13–08169. Each adversary complaint sought a determination that debts owed by the respondent to the plaintiff corporations were not dischargeable under the United States Bankruptcy Code, arguing, in sum, that as a corporate officer of the plaintiff corporations, the respondent engaged in fraudulent activities, including the utilization of a corporate charge card for unauthorized personal expenses, embezzling corporate funds, and creating fraudulent corporate documents.

On April 2, 2015, the plaintiff corporations filed a "Notice of Motion For Sanctions Concerning Defendant's Fabrication of Evidence And Perpetration Of A Fraud On The Court" in connection with the three adversary proceedings. The sanctions motion alleged that while an employee of the plaintiff corporations, the respondent fabricated documents and utilized these documents in the bankruptcy proceeding with the intent to defraud the plaintiffs and the court. The respondent opposed the motion.

On October 26, 2015, the parties entered into two stipulations resolving the sanctions motion and the underlying adversary complaints. By "Stipulation of Resolution of Sanctions Motion and Stipulation to Judgment in Adversary Proceeding" (hereinafter the sanctions stipulation), the respondent agreed that the allegations set forth in the sanctions motion were "conceded." In regards to the adversary proceedings, he further agreed that the allegations and debts set forth in the adversary complaints were "conceded and not discharged or dischargeable under the Bankruptcy Code."

Following additional proceedings, on October 30, 2015, the Bankruptcy Court issued an order approving the sanctions stipulation, as well as an "Order Granting Sanctions Motion On Consent" (hereinafter the sanctions order). The sanctions order stated, as follows:

"a. In 2012 and 2013, [the respondent] acting in conjunction with his agent, Brittany Koper, operated his Sony VAIO computer under the name ‘Mkoper’ to manually manipulate the VAIO's internal computer system clock, rolling back the computer's date and time to various dates and then conducted numerous activities on those dates.

"b. Those actions included but are not limited to the following:

"1) In 2012 and 2013, [the respondent] operated his Sony VAIO computer under the name ‘Mkoper’ and created and/or scanned onto the VAIO computer several documents in a ‘.pdf’ format on dates artificially created by rolling back and manipulating the Windows computer clock time settings, and those ‘.pdf’ documents now contain a false metadata description representing that those documents had been created or modified on those artificial ‘roll back’ dates. Those documents included fabricated loan authorizations, a home lease approval, life insurance purchase approval and other documents that included the fraudulent placement of the initials of Plaintiffs’ Director Paul F. Crouch, Sr.;

"2) On at least two dates in 2012, [the respondent] used his Sony VAIO computer to access a TBN email account through an internet web site, and [the respondent] then illegally procured Plaintiffs’ confidential corporate and legal records by transmitting those documents over the internet into [the respondent's] possession and control; "3) In 2012, [the respondent] installed a Lotus Notes email program on the Sony VAIO computer, which was used to fabricate emails purporting to have been sent or received in past years, prior to 2012;

"4) [The respondent] installed and operated a program on the Sony VAIO computer, CCleaner, which is designed to overwrite information and render it unrecoverable from the VAIO computer. There are over 62,000 user-created files of unknown contents, which will never be able to be accessed, that were overwritten from the Sony VAIO using the CCleaner program; and

"5) [The respondent] intentionally destroyed material evidence that would have proven the elements of Plaintiffs’ claims.

"c. The exhibits that were fabricated, created to defraud the Court and/or the Plaintiffs and the exhibits which were obtained by unauthorized access to Plaintiff's computer and the facts surrounding this conduct are all conceded ...

"d. The submitted audio recordings for the dates of September 19, 21, 23, 26 and 29, 2011, are accurate and all statements made therein by [the respondent] were made willingly, with no duress or undue influence.

"e. [The respondent] acted willfully, maliciously and with intent to defraud this Court and Plaintiffs, and acted intentionally in destroying material evidence.

"f. The Sanctions Motion requested the striking of [the respondent's] Answers which denied the allegations in the complaints filed in these three adversary proceedings relating to [the respondent's] intentional misconduct of fraud, embezzlement, false pretenses, and defalcation pursuant to 11 U.S.C. sections 523(a)(2), (4) and (6).

"g. [The respondent], acting in conjunction with his agent, Brittany Koper, attempted to create a defense to these allegations by manufacturing

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