Lawyer Suspended One Year for Violation of Rule 4.2

A lawyer licensed in New York has been suspended for one year for sending emails to a party he knew to be represented by counsel. See In re Matter of Henry Lung, 2018-09536 (Supreme Court of New York, Appellate Division, Second Department, dated April 18, 2020). The email communications surfaced in a domestic relations matter.

Charge one alleges that the respondent, in representing a client, communicated about the subject of the representation with a party he knew to be represented by another lawyer in the matter, without consent, in violation of rule 4.2(a) of the Rules of Professional Conduct ( 22 NYCRR 1200.0 ), as follows:

The respondent represented the father in a matrimonial action in Supreme Court, Queens County. The mother was represented by Morghan Richardson. On or about September 22, 2016, the parties entered into a so-ordered settlement of the matrimonial action, which included a parental access schedule regarding the parties’ minor child. Thereafter, on or about February 8, 2017, the mother filed a pro se family offense petition [*2] against the father in Family Court, Queens County, seeking, inter alia, an order of protection prohibiting him from having contact with her and with their minor child. The petition was granted and an order of protection was issued. Some of the email correspondence is quoted below:

“On May 12, 2017, Richardson emailed the respondent an offer to negotiate outstanding issues between the parties. In response, the respondent sent an email rejecting the offer. His email reply was copied to the mother, and included the following:

“Ever since the beginning of my representation of the father, I have recognized him to be the better parent, meaning the best interests of this child would be met with the child living with him, not your client, as the primary residential parent. Your client has taken enough rope, as the saying goes, and this nonsense needs to come to an end. You are continually advising her to commit acts of contempt of Court & forget about ever asking me to consider anger management.’ What really needs to happen here is your client needs to take classes on how to be a much better parent.

* * *

“But I know the truth Morghan, and the truth is that you are a liar. You lie and lie and continually pump your client’s head with total garbage just so that her parents (the real money train in all of this) continue to pay you. That is the real and only truth that matters in this entire case.”

The same day, Richardson replied and asked the respondent to refrain from contacting her further if he intended on “name-calling” and refusing to work collaboratively. The respondent replied on May 12, 2017, and copied the mother, stating:

“Your client is going to lose custody & if you doubt me, keep sending useless emails like this. The gravy train’ will end for you soon enough. Yes I absolutely do think of you as a liar insofar as you are actively advising your client to continue her current position.'”

Charge two alleges that the respondent, in representing a client, [*4] used means that had no substantial purpose other than to embarrass or harm a third person, in violation of rule 4.4(a) of the Rules of Professional Conduct ( 22 NYCRR 1200.0 ), by sending emails to opposing counsel, copied to opposing counsel’s client, which criticized opposing counsel, and accused opposing counsel of engaging in professional misconduct, based upon the conduct described in charge one.

Charge three alleges that the respondent engaged in conduct that adversely reflects on his fitness as a lawyer, in violation of rule 8.4(h) of the Rules of Professional Conduct ( 22 NYCRR 1200.0 ), based upon the conduct described in the two charges above.

The referee (somewhat akin to a hearing officer) recommended a one year suspension.

After consideration the Appellate Division sustained the recommendation of the Referee.

The Grievance Committee moves to confirm the report of the Special Referee, and for the imposition of such discipline upon the respondent as this Court deems just and proper. The respondent, by his counsel, moves to confirm in part and to disaffirm in part the report of the Special Referee. The respondent submits that the Special Referee properly sustained the three charges of professional misconduct, and requests that this Court consider the evidence in mitigation in determining the appropriate measure of discipline to impose.

“Based on the respondent’s admissions and the evidence adduced, we find the Special Referee properly sustained the charges. The Grievance Committee’s motion to confirm the report of the Special Referee is granted, and the respondent’s motion to confirm in part and disaffirm in part the report of the Special Referee is granted to the extent that the charges are sustained and is otherwise denied.

In determining the appropriate measure of discipline, the respondent seeks leniency, and asks this Court to consider: (1) the findings of the Special Referee, who concluded that his actions, while improper, were motivated by his desire to zealously represent his client; (2) that his misconduct was isolated to this one client matter and will not be repeated; and (3) the character evidence provided on his behalf. Notwithstanding the mitigation advanced, we find that the respondent’s claims that he acted out of frustration do not justify his violations of the Rules of Professional Conduct. He repeatedly sent emails to a party he knew to be represented, sometimes sending multiple emails on the same day and at inappropriate nonbusiness hours, which emails contained disparaging information in an aggressive tone. We find the [*6] respondent did so in an effort to criticize opposing counsel, to accuse her of engaging in professional misconduct, and to try to undermine the relationship between opposing counsel and her client. Even though the respondent knew his actions were improper, and despite being put on notice by opposing counsel that his actions were improper, he continued undeterred and without regard to the Rules of Professional Conduct. We have also considered as an aggravating factor the respondent’s extensive disciplinary history, which includes a public censure from this Court (Matter of Lung112 AD3d 148 ), four Admonitions, and two Letters of Caution.

Under the totality of the circumstances, we find that the respondent’s conduct warrants his suspension from the practice of law for a period of one year.”

Comment: Rule 4.2 prohibits this type of conduct. In this case, the sanction was more severe than typical because the lawyer used the emails to criticize his opposing counsel. The fact that he copied opposing counsel on the emails was not a mitigating factor.

Ed Clinton, Jr.

https://www.clintonlaw.net/legal-ethics.html