In re Rosenberg

202 A.D.3d 1271

161 N.Y.S.3d 520

In the MATTER OF Erwin ROSENBERG, an Attorney.

(Attorney Registration No. 2898625)

PM–26–22

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

Calendar Date: December 6, 2021

Decided and Entered: February 10, 2022

Monica A. Duffy, Attorney Grievance Committee for the Third Judicial Department, Albany (Michael K. Creaser of counsel), for Attorney Grievance Committee for the Third Judicial Department.

Erwin Rosenberg, Aventura, Florida, respondent pro se.

Before: Garry, P.J., Egan Jr., Lynch, Aarons and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER ON MOTION

Per Curiam.

Respondent was admitted to practice by this Court in 1998, after previously being admitted in Massachusetts in 1997. In 1999, he was admitted to the practice of law in Florida, where he maintained a legal practice. By May 2015 order, the Supreme Court of Florida found that respondent, among other things, had repeatedly failed to comply with court orders directing that he produce certain documents, continued to raise overruled objections and failed to pay court-ordered counsel fees. Accordingly, respondent was found guilty of violating three disciplinary rules – Rules Regulating the Florida Bar, Rules 4–1.1 (failure to provide competent representation), 4–3.4(a) and (d) (failing to act with fairness to opposing party and tribunal), and 4–8.4(d) (engaging in conduct prejudicial to the administration of justice).¹ As a sanction, a one-year suspension from the practice of law was found to be appropriate given, among other things, respondent's "continued ... abusive litigation practices" throughout the disciplinary proceedings ( Florida Bar v. Rosenberg, 169 So.3d 1155, 1162 [Fla. Sup. Ct., 2015] ).²

After respondent failed to respond to a petition by the Florida Bar alleging that he failed to, among other things, give the required notice of his suspension to his clients or opposing counsel and continued to appear as counsel in litigated matters while suspended, the Supreme Court of Florida issued an order in April 2016 holding respondent in contempt of its prior order and imposing the sanction of disbarment ( Florida Bar v. Rosenberg, 2016 WL 1566420 [Fla. Sup. Ct., 2016] ). Despite the disbarment order, respondent, among other things, continued to represent clients and hold himself out as an attorney in good standing in Florida. Following respondent's default in responding to a further contempt petition by the Florida Bar, the Supreme Court of Florida, by September 2017 order, held respondent in contempt of its April 2016 order and directed that respondent be permanently disbarred in that state ( Florida Bar v. Rosenberg, 2017 WL 4233015 [Fla. Sup. Ct., 2017] ).³

Respondent failed to timely notify this Court and the Attorney Grievance Committee for the Third Judicial Department (hereinafter AGC) within 30 days following the imposition of the three Florida orders as required by Rules for Attorney Disciplinary Matters ( 22 NYCRR) § 1240.13(d). AGC now moves to impose discipline upon respondent in this state based upon the disciplinary orders issued against him in Florida (see Rules for Attorney Disciplinary Matters [ 22 NYCRR] § 1240.13 ; Rules of App.Div., 3d Dept [ 22 NYCRR] § 806.13 ). Respondent has submitted papers in opposition to the motion, invoking one of the three defenses set forth in Rules for Attorney Disciplinary Matters ( 22 NYCRR) § 1240.13(b). AGC, by permission, has submitted an affirmation in reply.

Upon consideration of the record, we conclude that respondent has not established the invoked defense to the imposition of discipline in this state. Contrary to respondent's arguments, there is nothing in the record before us that would give rise to a conclusion "that there was such an infirmity of proof establishing the misconduct as to give rise to the clear conviction that the Court could not, consistent with its duties, accept as final the finding[s in Florida as to] respondent's misconduct" (see Rules for Attorney Disciplinary Matters [ 22 NYCRR] § 1240.13 [b][2]). Although respondent argues in a conclusory fashion that there was insufficient proof of his guilt at the disciplinary hearing that led to the initial suspension order in Florida, his assertions are disjointed and unsupported by the documentation in the record and, thus, do not "create a controverted issue of misconduct" ( Matter of Giuliani, 197 A.D.3d 1, 9, 146 N.Y.S.3d 266 [2021] ). As for the Florida disbarment orders, we note that respondent acknowledges that he did not give notice of the disciplinary orders issued against him and does not dispute that he continued to practice law regardless of the disciplinary orders in place. Notably, respondent fails to provide any persuasive authority for his constitutional claims and broad assertion that, because the Florida orders attempted to compel his submission to directives that he finds objectionable, his failure to comply with them was in accordance with his First Amendment rights. We are similarly unpersuaded...