Judge Lippman:
It seems that the lay public was omitted from your plans to improve public confidence of the courts and court reform (I’m sure it was not intentional). As such, I hereby take the liberty of speaking on behalf of consumers of legal services throughout New York State, and say, we applaud your current efforts towards reform, but there are still some concerns.
In your 2015 State of the Judiciary speech, you noted that “Access to justice is the defining principle of our court system.” You noted:
Access to justice means ensuring that litigants have meaningful representation when their liberty or the very necessities of life are at stake. Access to justice is the issue when citizens struggle to understand our justice system and the judicial process is hidden from view. Access to justice is also front and center when rich and poor, the privileged and the disadvantaged alike seek a level playing field before the courts, and it is what victims want when they enter the halls of our courts desperately seeking assistance. And access to justice is the driving force behind the court system’s determination to secure the resources necessary to meet our constitutional mission of fostering equal justice.
Equal justice, that defining principle of our country, requires that every human being has access to the courts and a judicial system where the scales of justice are exquisitely balanced.
You particularly noted that discipline for professional misconduct by lawyers is “an area in need of change.” You stated that “From a more systemic perspective, an efficient and effective attorney disciplinary system is fundamental to the sound administration of justice.” With regard to the plight of consumers, you noted that “While an attorney’s disciplinary history may not be the sole determinant in a potential client choosing an attorney, there is no doubt that it is pertinent information that should be easily accessible, in the same way and for the same reasons that complaints against physicians are public information when they result in a statement of charges or a final disciplinary action.” You recognized that “However uncomfortable or inconvenient the facts may be, the public has a right to know.”
http://www.nycourts.gov/ctapps/news/SOJ-2015.pdf
You then announced that you have centralized lawyer disciplinary information and made attorneys’ history of public discipline readily accessible on the Unified Court System’s website.
Also recognized by you was the fact that “commentators have raised important and challenging questions including whether our departmental-based system leads to regional disparities in the implementation of discipline, whether conversion to a statewide system is desirable, and how can we achieve speedier dispositions that give much-needed closure to both clients and attorneys.”
You announced the creation of the Commission on Statewide Attorney Discipline which will be chaired by Chief Administrative Judge A. Gail Prudenti, and “made up of leaders from both the bench and the bar,” of whom you have already announced.
This commission, you stated, “will conduct a top-to-bottom review of the system throughout the state to assess what is working well and what can work better, and to offer recommendations on fundamentally reshaping attorney discipline in New York.”
These efforts are in large part based on a 2014 study put forth by New York University Law Professor Stephen Gillers entitled: “Lowering the Bar: How Lawyer Discipline in New York Fails To Protect The Public.” In Professor Gillers’ study, he highlights the systematic ways in which the grievance committees do in fact fail to protect the public.
http://www.nyujlpp.org/wp-content/uploads/2014/07/Gillers-Lowering-the-Bar-17NYUJLPP2.pdf
One year prior, in 2013, I too conducted a study entitled: “ An Analysis of the Perceptions of the Legal Profession Through the Eyes of Dissatisfied Consumers of Legal Services in Manhattan, NY: An Interpretative Phenomenological Analysis.” This study was conducted under the guidance of Qualitative Research expert Dr. Jerry Willis, and provided an intimate look at the consumers’ perception of their experiences of dissatisfaction with legal services. One finding was that the experience of consumer dissatisfaction with legal services is analogous with the experience of domestic abuse (More on that topic coming soon).
Based on my extrapolation of Professor Stephen Gillers’ analysis, and as delineated in my own analysis, the current structure of the attorney and judicial grievance committees is not representing the nuanced issues or positions of consumers of legal services/NYS constituents, and is also not representing both the Constitutional, and the Code of Conduct interpretations that are shared by the vast majority of consumers of legal services.
Judge Lippman, your efforts are commendable, however they fall somewhat short of consumer protection and interests, particularly from the consumers’ vantage point.
For example, you purport to make lawyer disciplinary information and history of public discipline readily accessible on the Unified Court System’s website.
Yet, the Departmental Disciplinary Committee First Appellate Division (Manhattan, NY) alone receives approximately 3300 complaints against lawyers annually, and dismisses over 98% of the complaints annually. What disciplinary history will be made available to the public? The less than 2%?
Further, consumer research and the American Bar Association (ABA) both show that the number of actual aggrieved consumers of legal services may likely be significantly higher. The ABA notes: “For every such complaint filed and dismissed, undoubtedly many more clients simply give up without filing a complaint and then blame the profession.”
Judge Lippman, I need to know. Will you be making “private” discipline available to the public? In your 2015 State of the Judiciary, you did not specifically mention “private discipline” but you did specifically mention “public discipline.” The lawyers who receive public discipline are usually ones who are suspended or disbarred anyway. The public needs information (private and public) on the legal professionals who are still engaging consumers.
A potential consumer of legal services doesn’t need to know how the legal profession perceives an attorney’s behavior, as much as the consumer needs to know how other consumers have experienced that attorney, and the consumer needs that information immediately.
Also, dismissing consumer complaints, particularly with no fair explanation, erodes public trust of the process, and prevents consumers from evaluating how the complaint did not meet the just cause standards, which renders futile any of the consumers’ efforts to protect themselves from harmful experiences in the future.
I recommend following the lead of NYS Senator George Latimer or Port Chester, NY, where in a progressive bill, he pursues legislation that would require authorities to explain dismissal decisions to consumers when consumer complaints against New York lawyers are dismissed. It also requires authorities to document reasons for decisions not to pursue disciplinary proceedings against New York lawyers. This bill would make the grievance process more public.
Note: Senator Sampson has now informed me that during the current 2015 legislative session, he will be revisiting his efforts from 2009 to create legislation for consumer protection against errant legal proessionals. (More on that exclusive interview coming soon).
I also suggest following the advice of Professor Gillers whereas: “New York should join the forty American jurisdictions that make the process public once probable cause of a violation is found.”
Judge Lippman, to support these recommendations, I present the following two examples:
1) Ifeanyichukwu Eric Abakporo: Steals Building From 80 Year Old Harlem, NY Resident.
Ifeanyichukwu Eric Abakporo, a lawyer embraced by the legal profession as “an officer of the court,” was hired by 80 year Harlem, NY resident, Ina McCarther. “The elderly McCarther hired this lawyer to handle the business affairs of her 37 unit building, a property that she bought in the 1954 for $198,000, and was hoping to now sell it for $4 million.”
Federal prosecutors say that “instead of managing her property and turning the checks over to McCarther, Abakporo and his accomplice/secretary, Latanya Pierce, deposited the rental checks into their own bank accounts,” then stole the building altogether. On May 12, 2012, the FBI announced their arrests.
http://www.fbi.gov/newyork/press-releases/2012/manhattan-u.s.-attorney-announces-arrests-of-two-individuals-in-multi-million-dollar-scam-involving-elderly-woman
Since there was no way for potential clients to know that this lawyer was actually a criminal, reporters from Saharareporters and the NY Daily News reported on his illegal activities. Abakporo continuously sued the reporters trying to keep his crimes a secret so he could continue to prey on and victimize other unsuspecting consumers. Judges found the first case to be completely baseless, and the second case was dropped when he was arrested.
Federal prosecutors also note that Abakporo’s crime spree had gone on for nine (9) years.
On May 29, 2014, Abakporo was sentenced by Judge Shira A. Scheindlin, to 6 years in federal prison, where he remains today.
Today, Harlem, NY’s 80 year Ina McCarther no longer has a property and has lost everything that she worked for her entire life. There is no remedy available to her at all.
Today, April 7, 2015, while Abakporo sits in federal prison, where he has been for the past year, he is still depicted as a registered attorney with the Appellate Division Second Department, where the New York State Court online system also states: “No record of public discipline.”
http://iapps.courts.state.ny.us/attorney/AttorneyDetails?attorneyId=5467156
Today, on AVVO, the lawyer online rating system, it states “We have not found any instances of professional misconduct for this lawyer.” AVVO Rating: “Good”
http://www.avvo.com/attorneys/11365-ny-ifeanyichukwu-abakporo-899277.html
2) Emmanuel Roy: While Complaints Under Investigation with the First Department DDC, Lawyer Went on a Crime Spree Against Clients in New York and Florida
Of course no lawyer disciplinary committee story would be complete without a reference to the infamous Emmanuel Roy.
October 15, 2009, Emmanuel Roy, a lawyer embraced by the legal profession as “an officer of the court,” was one of the lawyers arrested by the Federal Bureau of Investigation (FBI) for “engaging in a $64 million mortgage fraud scheme.”
http://www.fbi.gov/newyork/press-releases/2009/nyfo101509.htm
In January 2006, three years prior to Roy’s arrest, several complaints had been submitted against him to the Departmental Disciplinary Committee First Department (DDC), which is the New York State Court agency charged with the day-to-day administration of the attorney disciplinary system.
Immediately after Roy’s arrest in October 2009, the DDC then conducted an emergency disbarment proceeding charging Roy with “38 violations of the disciplinary rules, including 16 charges of dishonesty, fraud, deceit or misrepresentation, falsifying a contract of sale and other mortgage documents to reflect an inflated sale price, misappropriating funds he was holding in escrow for a client, making material misrepresentations to the Small Claims Court in a subsequent action that arose from his conduct, submitting a false affidavit, stealing a client’s identity to apply for a credit card, testifying falsely in a deposition before the DDC, submitting fabricated documents to the DDC, neglecting a client’s legal matter, using a false and misleading name for his law firm, and failure to maintain escrow account records.”
During the three long years since complaints had been submitted against Roy in New York’s First Department, he engaged in egregious acts of abuse against clients in the Florida federal criminal court. “Roy wasn’t even admitted to practice in the Southern District” (federal courts).
At Roy’s request, one client, through his family, “paid over $275,000 in the form of cash, jewelry, real estate property, and an automobile,” for the payment of Roy’s legal fees for a criminal case.
A judge later found that Roy flew to England and “took a $23,000 wedding ring from the finger of the client’s wife at a meeting, took a Porsche, tens of thousands of dollars, and a townhouse from the family of the client. Roy then instructed the client to plead guilty and immediately abandoned the client and his family.”
When the client’s family member expressed concerns about the client’s health while in prison, and not being able to contact Roy, after finally “receiving a call back from Roy after the client’s sentencing, Roy told the family member that he had been invited to President Obama’s inauguration and that, since the “head of the U.S. Bureau of Prisons” would be there, he would discuss Mr. Coulton’s medical issues with him at that time.”
Roy, clearly the pathological liar, was then arrested again in New York by federal law enforcement and shipped to Florida to face the federal judge.
Roy’s partner in the crime spree, Peter Mayas, who was another lawyer until he also got disbarred, stated that Roy taught him how to avoid having to repay the client by hiding the money and stating that since there is no “debtors prison,” they cannot be penalized for spending the money.
A Florida lawyer stated: “This is one of the most offensive stories of lawyer misconduct I’ve seen. Going on a crime spree while taking advantage of the foreign family of a incarcerated client is despicable. The list of offenses here, the conspiracies that occurred – are an embarrassment.”
The Florida judge in the matter, Judge William C. Turnoff, called Roy’s conduct “disgusting,” “abhorrent” and the “most outrageous he’d seen in 25 years on the bench.”
http://articles.sun-sentinel.com/2013-02-05/news/fl-rogue-lawyers-judge-20130204_1_miami-lawyer-federal-court-rogue-lawyers
The client was ultimately awarded Peter Mayas’ house. Roy’s assets have not been found.
http://miami.cbslocal.com/2014/02/26/man-ripped-off-by-2-unqualified-attorneys-moves-into-lawyers-home/
If measures had been taken in New York by the DDC to address Roy’s behavior when those behaviors were brought to the DDC’s attention in January 2009, his actions might not have had such far reaching consequences and may not have caused so much harm to the client, his family, and the states of New York and Florida. Instead, the DDC seemed to be proactive in protecting the image of the legal profession at the public’s expense, although in theory, and also in policy, the courts are supposed to protect the public.
It does seem that the legal profession wants to do more. This was apparent in 1992 with the findings of the American Bar Association’s Report of the Commission on Evaluation of Disciplinary Enforcement, and is still apparent today as evidenced by studies of noted law school ethics experts and the efforts of court administrators.
Robert Tembeckjian, Administrator of the Commission on Judicial Conduct, makes it known that the disciplinary committees, within their current structures, simply may not have the capacity (staff and resources) to penalize all of the “bad apples” (legal professionals who engage in unethical behavior), while simultaneously maintaining the bad apples’ rights to due process. He notes that the “judicial commission had tried hard to make do with less, including by reducing its staff and training days. But those kinds of efficiencies can only go so far.” With regard to public protection and the protection of the independence of the judiciary, Tembeckjian notes: “Without adequate funding, neither of these goals can be met.”
The bad apples of the legal profession have seemingly “caught on” and enjoy a more acute awareness of antiquated laws and the disciplinary committees’ flaws and limitations. The bad apples seemingly use the law and their legal skills to circumvent the disciplinary processes. When all else fails, they also have the mitigating factors to rely on (drug addiction, marriage trouble, financial strain…). They are also keenly aware that the disciplinary committees seemingly use a cookie cutter practice of “precedents,” assuring them of what they will get away with and for how long.
Whatever the internal issues, and whether errant lawyers are granted accommodations based on qualifiable mitigating factors or not, as noted by the American Bar Association in 1992, and which still rings true today, as shown in the case of 80 year old Ina McCarthy, “The public is left with no practical remedy.”
Further, the currently flawed disciplinary structure might also not be representative of attorney interests in the broadest sense, because most upstanding attorneys are in fact on the side of consumer rights and satisfaction. I believe some authorities in the legal profession may see their hands as being tied. Either way, simply consolidating the grievance committees through a process spearheaded by a group of attorneys and judges does nothing to encourage public trust of the courts. What consolidating the grievance committees may do, is reconcile disciplinary practices between the different NYS grievance committees to ensure consistency with the discipline of errant legal professionals. A sensible public concern is that it may also adopt the practices of the more lenient grievance committees and exacerbate the cookie cutter practice of precedents. Either way, this approach will seemingly advance the plight of legal professionals, but will not however, do anything at all to advance the plight of dissatisfied consumers of legal services. Even the legal profession’s own preamble to the disciplinary rules say that “the disciplinary system is supposed to serve the “public interest” and not the ‘parochial interests’ of the bar.”
It would be beneficial to have a diverse committee which consists of legal professionals and members of the lay public, to offer a diverse set of ideas and opinions with advancing the public’s trust of the courts, particularly with the attorney and judicial disciplinary process.
In Summary
As an immediate measure for public protection, it is crucial to ensure that the disciplinary committees are given adequate resources to ensure the enforcement of the rules and standards.
As an immediate measure for public protection, as well as for ensuring consumers’ rights to information about products and services, it is crucial for New York State to reconcile it’s grievance practices with the forty other American jurisdictions, as noted by Professor Gillers, and ensure that complaints against lawyers are made available to the public once there is probable cause.
It would be beneficial to have a diverse committee which consists of legal professionals and members of the lay public, to offer a diverse set of ideas and opinions with the attorney disciplinary process.
Here’s hoping New York State will be the catalyst for improving public trust of the courts.
Youre truly,
Caprice