Disciplinary charges are not an uncommon event, but we have rarely read of self-destructive conduct as is set forth in Matter of Frelix  2015 NY Slip Op 07775  Decided on October 22, 2015
Appellate Division, First Department  Per Curiam.  The conduct brought a 5 year suspension (they hinted that disbarment was just avoided).  What is more important to us, is that all of this tiresome and unnecessary lawyer disregard hurt regular plaintiffs.  They claim that Frelix committed legal malpractice, and it’s our guess that there will be little or no insurance to cover their claims.  Here is the back story:

“In May 2013, respondent was served with a notice and statement of charges alleging 15 counts of professional misconduct involving four matters, and charging violations of Rules of [*2]Professional Conduct (22 NYCRR 1200.0) rule 1.3(b), rule 1.4(a)(1)(iii), rule 8.4(d), rule 8.4(h), rule 1.16(b)(3), and Code of Professional Responsibility DR 1-102(a)(4) (22 NYCRR 1200.3[a][4]) (two counts), DR 1-102(a)(5) (22 NYCRR 1200.3[a][5]) (seven counts), DR 7-102(a)(2) (22 NYCRR 1200.3[a][2])^[FN1]. Respondent was charged with engaging in a pattern of misconduct including neglect, ex parte communications, misleading the Departmental Disciplinary Committee (the Committee), frivolous motion practice, and disregard of court orders. In her amended answer, respondent denied the charges.

In August 2013, the Committee moved before a referee to find respondent guilty, pursuant to the doctrine of collateral estoppel, of Charges 5-10, 12, and 15, based upon findings and rulings issued by several courts ^[FN2]. The referee granted the motion in its entirety on November 13, 2013, and, following a liability hearing, issued a report sustaining the remaining charges on [*3]April 25, 2014^[FN3]. After a sanction hearing, the referee issued a report, dated October 17, 2014, recommending a 3½-year suspension (to be reduced by six months if respondent submits evidence of remedial studies in ethics and professionalism and pays outstanding fines and penalties).

On January 22, 2015, a Hearing Panel convened for a hearing scheduled to begin at 10:30 a.m. After waiting for respondent for an hour, the Panel proceeded with the hearing in her absence ^[FN4]. By report and recommendation dated March 12, 2015, the Panel recommended affirming the referee’s liability report, disaffirming the sanction report, rejecting the referee’s proposed 3½-year suspension and, instead, imposing a five-year suspension.

Now, by a petition dated April 9, 2015, the Committee seeks an order, pursuant to the Rules of the Appellate Division, First Department (22 NYCRR) § 603.4(d), confirming the Hearing Panel’s report and recommendation and suspending respondent from the practice of law for five years. Respondent opposes the motion and seeks dismissal of the Panel’s report.

We find that the Hearing Panel’s findings of fact and conclusions of law, sustaining all 15 [*4]charges, are supported by an overwhelming amount of evidence and should be confirmed. Respondent’s conduct is marked by her absolute lack of consideration for the courts, her adversaries, and her clients, resulting in the dismissal and/or expiration of time to appeal in each case at issue.

With respect to the charges that were sustained pursuant to the doctrine of collateral estoppel, the Hearing Panel properly found that there was an identity of issues with respect to the underlying orders and that respondent had a full and fair opportunity to litigate those issues (see Kaufman v Eli Lilly & Co., 65 NY2d 449, 455 [1985]). In each case, respondent was given notice of the possible imposition of sanctions and an opportunity to be heard, and either unsuccessfully appealed, attempted to appeal, or took no appellate action.

Respondent’s claim that the Committee admitted, by silence, that her arguments as to collateral estoppel were correct, is nonsensical. Since bringing the collateral estoppel motion, the Committee has consistently maintained the doctrine’s applicability to the underlying sanction orders.”

“As to the remaining charges, respondent’s claim that certain documents relieve her of responsibility is unpersuasive. For example, in her letter to opposing counsel in the first case in the Southern District of New York (SDNY), respondent admitted her failure to contemporaneously serve the defendant a copy of her letter to the unassigned judge, making it an ex parte communication. Moreover, contrary to respondent’s suggestion, a letter from her client’s new counsel in the second SDNY case does not indicate that the client continued to consider respondent to be her counsel; rather, it accused respondent of legal malpractice.

Furthermore, respondent’s objections to the Panel’s composition are meritless. The Panel was comprised of four of the seven members identified in the Committee’s prehearing notice, three of whom were lawyers. Pursuant to 22 NYCRR 605.22(d), all matters before a Hearing Panel are to be determined by three members, two of whom constitute a quorum. Only two members of the Panel must be attorneys (see 22 NYCRR 605.18[b]). Further, respondent’s claim that the Panel did not consider her positions is belied by the Panel’s 58-page report, which reflects a thorough review of the record.

The charged conduct is serious and involves the disregard of numerous court orders and the advancement of frivolous claims, resulting in the dismissal of three matters. Moreover, by failing to timely file papers, failing to appear before the Panel, presenting factually and legally unsupportable arguments, accusing the Panel of bad faith, and suggesting that the Committee hacked her email, respondent is displaying the same kind of disregard for the law, the courts, and her adversaries as she displayed in the underlying cases ^[FN5]. Her actions reflect a lack of understanding of the basic principles guiding professional conduct. She has failed to demonstrate remorse or acknowledge her wrongdoing, and has not presented any character witnesses or evidence of mitigating factors.

With respect to sanctions, the Panel’s recommendation of a five-year suspension, which respondent does not address, is an appropriate sanction, perhaps even a generous one, in light of respondent’s pattern of misconduct in four cases over a five-year period, misconduct which continued in the face of repeated warnings and sanctions. The multiple aggravating factors, including respondent’s lack of remorse or acknowledgment of wrongdoing, and failure to pay prior sanctions, and the absence of compelling mitigating factors also counsel in favor of a lengthy suspension (see Matter of Abady, 22 AD3d 71 [1st Dept 2005] [five-year suspension for pattern of misconduct including neglect and repeated disregard of court orders despite steps to improve behavior, character testimony, and extensive pro bono work]; Matter of Brooks, 271 AD2d 127 [1st Dept 2000], appeal and lv dismissed 95 NY2d 955 [2000] [disbarment, despite health problems and personal tragedies, for neglect, repeated failure to comply with court orders, knowingly advancing unwarranted claims, failure to cooperate with the Committee, and failure to fully accept responsibility]; Matter of Kramer, 247 AD2d 81 [1st Dept 1998], lv denied 93 NY2d 883 [1999], cert denied 528 US 869 [1999] [disbarment for pattern of misconduct over many years, including refusing to cease acting on clients’ behalf after discharge, disobeying discovery orders, making false sworn statements, and filing frivolous claims]).”