Disbarred Lawyer Sanctioned By The Southern District of New York

GURVEY v. COWAN, LEIBOWITZ & LATMAN, PC, Dist. Court, SD New York 2015 – Google Scholar:

Several years ago Amy Gurvey brought a legal malpractice action against her former divorce lawyers. Her complaint was dismissed but the Second Circuit reinstated the legal malpractice count. Ms. Gurvey, acting pro se, handled the litigation in the district court after the appellate decision in her favor.

In this opinion, the district court adopted a recommendation of a magistrate judge that Ms. Gurvey be sanctioned $20,000 for filing frivolous pleadings. The court describes the procedural background as follows:

Plaintiff is a lawyer suspended from the practice of law in the State of New York. In the three-and-a-half years since the Second Circuit mandate, Plaintiff has acted pro se except for a five-month period from April 7, 2015, to September 14, 2015. During those years, she has done little to bring her claims to resolution. Plaintiff has failed to comply with discovery orders, has resisted the taking of her own deposition and has filed a multitude of meritless motions and applications.

For instance, by Order dated July 15, 2013, Judge Pitman found that Plaintiff had violated: (1) an Order dated October 10, 2012, by seeking discovery that far exceeded the scope of her malpractice and breach of fiduciary claims; and (2) an Order dated January 14, 2013, by failing to provide Judge Pitman with written explanations of how each of her discovery requests served on Defendants were relevant to her two claims for attorney malpractice and breach of fiduciary duty by the court-order deadline of January 17, 2013. The July 15, 2013, Order denied Plaintiff’s request for an extension of time, stating that Plaintiff’s excuse that she was hospitalized for a couple months for health reasons were baseless as she continued to make numerous filings during that period.

Rather than pursuing her claims, Plaintiff has made the following applications, among others: (1) permission to file a proposed fourth amended complaint, fifth amended complaint and sixth amended complaint; (2) disqualification of Defendants’ counsel; (3) an extension of time to effect service even though Plaintiff commenced the action in 2006; (4) reconsideration of orders and opinions; (5) remand to state court; (6) purported interlocutory review of Judge Pitman’s decisions directly by the Second Circuit; (7) sanctions against Defendants; and (8) judicial recusal.

As a result, the docket sheet has grown by over 200 entries since this case was remanded by the Second Circuit over three years ago. Despite the size of the docket sheet, and a fact discovery deadline of September 19, 2014, this case has not proceeded to the summary judgment stage or trial.

The court held that several pleadings violated Rule 11, including a motion for reconsideration, a motion for leave to file a Fifth Amended Complaint and a Disqualification motion. The court explained that simply refiling a complaint and describing it as an amended complaint violates Rule 11.

“Plaintiff’s Motion to Amend also violated Rule 11 because the proposed sixth amended complaint was duplicative of her proposed fifth amended complaint. Rule 11 sanctions may be imposed when a proposed amended complaint “not only failed to correct legal deficiencies in plaintiffs’ earlier amended complaints, but reasserted, without sufficient new factual allegations, numerous claims that [had been] dismissed, and asserted certain other claims without any substantive legal basis.” Adams v. N.Y. State Dep’t of Educ., 855 F. Supp. 2d 205, 206 (S.D.N.Y. 2012) (imposing Rule 11 sanctions for proposed complaint that “merely retreaded claims previously dismissed”), aff’d sub nom. Hochstadt v. N.Y. State Educ. Dep’t,547 F. App’x 9 (2d Cir. 2013).”

The motion for disqualification violated Rule 11 because it contained false factual statements about a Judge. The motion for reconsideration violated Rule 11 because it had no chance of success and was not designed to modify existing law.

The court further ordered that plaintiff must pay the $20,000 sanction in one year of the case will be dismissed.

Edward X. Clinton, Jr.

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ARDC Review Board Increases Proposed Discipline of Novoselsky

Filed April 10:

The ARDC has two pending cases against David Novoselsky, a well-known Chicago attorney. In this case, which I call Novoselsky I, the ARDC Review Board has affirmed the decision of the ARDC Hearing Board to suspend Novoselsky for six months. But the Review Board also increased the penalty as well. It states:

“Respondent’s conduct in the Zvunca case also warrants a suspension. In other similar cases, the Court has imposed suspensions upon attorneys for engaging in a pattern of loud and disparaging remarks to other attorneys. See e.g., In re Guadagno, 2010PR0065, petition for discipline on consent allowed, No. M.R. 24962 (Jan. 13, 2012)(five month suspension, stayed after thirty days by probation, for making homophobic slurs to opposing attorneys); In re Hoffman, 08 SH 65 (Review Bd., June 23, 2010), recommendation adopted, No. M.R. 24030 (Sept. 22, 2010)(suspension of six months and until further order for making an improper statements to a lawyer about the lawyer’s religion and in making statements about the integrity of two judges that were false; respondent had practiced for thirty five years without incident but failed to apologize for his remarks); In re O’Shea , 02 SH 64 (Review Bd., July 16, 2004), petitions for leave to file exceptions allowed, No. M.R. 19680 (Nov. 17, 2004)(five month suspension for threatening opposing counsel outside of the courtroom and in writing and for engaging in one conflict of interest). While no disciplinary case presents the identical findings of misconduct involving a pattern of engaging in violations of Rule 4.4 and a pattern of engaging in a failure to communicate with several clients, failing to return unearned fees and engaging in dishonesty, the six month suspension as recommended by the Hearing Board is not out of line with the Court’s precedent.

We are particularly troubled by Respondent’s conduct in the Zvunca litigation. His attacks on opposing counsel and a court deputy displayed an utter disregard for the integrity of the courts. While he may still believe that he was provoked, the record indicates otherwise. We find his conduct to be indefensibly outrageous. Accordingly, we believe that our sanction recommendation must reflect the goals of the disciplinary process and must serve to protect the public from similar behavior, to protect the integrity of the courts, and to deter similar behavior by other attorneys who might be tempted to lash out against others with the use of vulgarity and personal attacks in court proceedings.

Respondent’s conduct is aggravated by the fact that he has not recognized that his repeated impulses to strike out verbally in anger were inappropriate or unprofessional. We share the Hearing Board’s concerns regarding Respondent’s repeated refusal to acknowledge that he did anything wrong. He expressed absolutely no remorse and the Hearing Board found that his testimony at hearing was “incredible”. The Hearing Board was particularly troubled by the fact that Respondent “had an excuse for nearly everything he did or did not do, regardless of whether the actions related to a charge of misconduct.” The Hearing Board noted that this tendency was concerning given the “overwhelming evidence of misconduct, especially regarding Respondent’s failure to properly communicate with his clients and his failure to put contingency fee agreements in writing.” (Hearing Bd. Report, pp. 104-106).

Given the nature of the misconduct when coupled with Respondent’s complete lack of understanding of his obligations and his propensity to resort to dishonesty during his testimony at his disciplinary hearing, we believe that the six month suspension recommended by the Hearing Board should continue until further order of the Court. The Court has imposed a suspension until further order of the Court where there has been a lack of evidence that the respondent is willing or able to meet professional standards of conduct in the future. See, e.g., In re Houdek, 113 Ill.2d 323, 327, 497 N.E.2d 1169 (1986); In re Bless, 2010PR00133 (Review Bd., Oct. 30, 2014), approved and confirmed, No. M.R. 27134 (March 12, 2015). We believe that a suspension that continues until further order of the Court better serves the purposes of discipline and better protects the public.

The Administrator contends that this Board’s recommendation should include an order that Respondent pay restitution to the Shabos and to Vlastelica for his unearned fees. We agree. The Hearing Board unequivocally found that Respondent had not earned the $15,000 in each matter. We do not believe that the pendency of civil litigation requires that the Court refrain from ordering that Respondent return the monies that clearly do not belong to him. See, e.g., In re Giamanco, 97 SH 27 (Review Bd., Feb. 17, 1999), approved and confirmed, No. M.R. 15818 (May 26, 1999); In re Larry, 07 CH 19, (Review Bd., Aug. 11, 2009), petition for leave to file exceptions allowed, No. M.R. 23380 (Jan. 21, 2010).”

Obviously, the suspension that continues until further order of court is a huge blow to the respondent who must now petition to show that he should be reinstated.

The Zvunca litigation has been the subject of several court opinions, including an opinion of the Appellate Court reversing numerous orders in the Zvunca case. The Appellate Court also affirmed an order sanctioning Novoselsky. One could question the need for a second Novoselsky case also arising out of the Zvunca matter.

Update: On September 21, 2015, the Illinois Supreme Court agreed to a six-month suspension but did not order that the suspension continue until further order of court. The result is a win for Novoselsky.

Edward X. Clinton, Jr.

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Illinois Review Board Increases Proposed Penalty For Frivolous Tax Filings

Filed January 20:

The case is In re Jerold Wayne Barringer, 2012 PR 00055. The Hearing Board recommended a six month suspension and until further order of court. The Review Board “recommended that Respondent be suspended for a period of two years stayed after six months by a period of probation for eighteen months with conditions.”

Barringer’s troubles included an appeal he handled before the Seventh Circuit on behalf of a man convicted of tax evasion, money laundering and wire fraud. The Seventh Circuit found the lawyer’s performance to be below that of a pro se litigant. The Review Board explained:

“In his opening brief, Respondent based his arguments on two primary premises?1) that the federal government was required to prove at trial that Patridge was aware of the specific provisions of the tax code that he was accused of violating and 2) that the federal government was prohibited from subjecting Patridge to penalties because the tax forms in question failed to display a valid control number from the Office of Budget and Management as allegedly required by the Paperwork Reduction Act of 1995.

The Court of Appeals issued an opinion finding that the nineteen issues raised by Respondent in his brief, including the above issues, were “all frivolous.” The court also stated that Respondent “performed below the standard of a pro selitigant; we have serious doubt about his fitness to practice law.” United States v. Patridge, 507 F.3d 1092, 1093-1095 (7^th Cir. 2007). The court noted that Respondent failed to follow court rules regarding requirements for the appendix to his brief. The court issued an order for Respondent to “show cause why he should not be fined $10,000 for his frivolous arguments and noncompliance with the Rules, and why he should not be suspended from practice until he demonstrates an ability to litigate an appeal competently and responsibly.” Respondent paid the fine and the court declined to suspend him.”

In another case the Tenth Circuit suspended Barringer from practicing before it. In the final matter raised, the United States District Court for the Southern District of Illinois voiced similar concerns about Barringer’s representation and terminated his ability to represent a client.