Attorney Grievance Comm. for the First Judicial Dep't v. Denenberg (In re Denenberg)

• Decision Date: 29 December 2020
• Docket Number: Motion No. 2020-02997,Case No. 2019-00052
• Citation: 192 A.D.3d 76,137 N.Y.S.3d 363
• Parties: In the MATTER OF Seth E. DENENBERG, (Admitted as Seth Evan Denenberg) an attorney and counselor-at law: Attorney Grievance Committee for the First Judicial Department, Petitioner, v. Seth E. Denenberg, an Attorney (OCA Atty Reg. No. 1920859), Respondent.
• Court: New York Supreme Court — Appellate Division

192 A.D.3d 76

137 N.Y.S.3d 363

In the MATTER OF Seth E. DENENBERG, (Admitted as Seth Evan Denenberg) an attorney and counselor-at law:Attorney Grievance Committee for the First Judicial Department, Petitioner,

v.Seth E. Denenberg, an Attorney (OCA Atty Reg. No. 1920859), Respondent.

Motion No. 2020-02997

Case No. 2019-00052

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

Entered: December 29, 2020

Jorge Dopico, Chief Attorney, Attorney Grievance Committee, New York, (Sean A. Brandveen, of counsel), for petitioner.

Mark A. Longo, Esq., for respondent.

Dianne T. Renwick, J.P., Judith J. Gische, Ellen Gesmer, Peter H. Moulton, Manuel J. Mendez, JJ.

IN THE MATTER OF SETH E. DENENBERG, AN ATTORNEY

Per Curiam Respondent Seth E. Denenberg was admitted to the practice of law in the State of New York by the Second Judicial Department on April 25, 1984, under the name of Seth Evan Denenberg. At all times relevant to this proceeding he maintained an office for the practice of law within the First Judicial Department.

In 2019, the Attorney Grievance Committee (the Committee) served respondent with a notice of petition of charges for violations of rules 3.3(f)(2) and 8.4(h) of the Rules of Professional Conduct ( 22 NYCRR 1200.0 ). The petition alleges that respondent made offensive remarks to and about three attorneys from Brooklyn Legal Services that were his adversaries in landlord-tenant matters. Respondent admitted some of the factual allegations but denied all the charges. Respondent's law practice largely consisted of representing clients in landlord-tenant court; he was an active practitioner in Brooklyn's Housing Court and frequently litigated matters against tenants represented by attorneys from Brooklyn Legal Services.

Charge one alleges that respondent violated rule 3.3(f)(2) by engaging in undignified or discourteous conduct while appearing before a tribunal by using gender pejorative language, specifically, on January 13, 2017 respondent repeatedly referred to opposing counsel as a "bitch" in front of her clients and other witnesses in the hallway adjoining a courtroom at the Brooklyn Housing Court. Charge two relies on the same facts as charge one and states that respondent violated rule 8.4(h) by engaging in conduct that adversely reflects on his fitness as a lawyer.

This Court appointed a Referee to conduct a hearing on the charges and to recommend disciplinary sanctions, if appropriate. The Referee held a hearing on November 19 and 20, 2019 at which the Committee called six witnesses and introduced documentary evidence. Respondent called seven witnesses—including himself—and submitted four character letters.

The complainant testified that on January 13, 2017, she was at Brooklyn Housing Court representing tenants in a case in which respondent represented the landlord. She was in a packed hallway of the courthouse speaking with her clients and was not ready to have her case called because she needed to consult with her supervisor. Respondent, the complainant's adversary, insisted that he was going to have the case called. The complainant stated she sternly told respondent not to do it, and he said something to the effect of "Well excuse me, Ms. Boss-ma'am" and "You don't have to be a bitch about it." The complainant testified she was shocked and appalled by the use of those terms and asked respondent to repeat what was said, and he repeated "I said you are a bitch," and then called her a "bitch" loudly a few more times in front of the complainant's clients and colleagues. The complainant estimated that respondent called her a "bitch" five times. She testified that she pointed a finger at respondent but did not touch him. The Committee's witnesses confirmed her version of events, including that respondent repeated the word "bitch" when the complainant asked him what he had called her.

The complainant stated that respondent never apologized to her and that "I felt like the comments were racist... like the comments were sexist, and I feel like if I was a white man, no matter what my years of experience in this practice, he would not have said that. And so, I think that my position as a young black woman enabled him to – made him feel comfortable talking down to me and in treating me like I am not too – a licensed attorney practicing in this state."

In addition, she testified that there was one occasion when she witnessed respondent refer to "her former supervisor as "Che" or "Che Guevara" outside of his presence, which shocked her.

Respondent attempted to justify his actions. He stated that he only used the word "bitch" once, which is contradicted by the testimony of the witnesses who observed the incident. He implied that his behavior was warranted because the complainant became physically aggressive and poked him on the forehead with her finger about three or four times. None of the witnesses, including all six of respondent's witnesses, observed the complainant poking or making any physical contact with respondent. He had also initially stated that the complainant slapped him, but subsequently admitted that she did not, and withdrew the allegation.

In a preliminary report, the Referee advised the parties that he intended to sustain charges one and two. The parties waived a sanction hearing and instead submitted memoranda in which the Committee argued for a suspension of no less than three months and that respondent be directed to participate in counseling for a period of up to one year, as determined and monitored by the New York City Bar Association's Lawyer Assistance program (LAP), provided that such counseling include training on diversity, inclusion, and elimination of bias beyond that mandated by New York CLE requirements. Respondent urged a private censure or letter of caution.

By a subsequent report, the Referee sustained charges one and two. The Referee credited the complainant's testimony and those of the Committee's witnesses that observed the entire confrontation—beginning, middle and end—and heard respondent use gender pejorative language in front of the complainant's clients and others present in the Brooklyn Housing Court. The Referee found "that Respondent, without justification or provocation, not only accused [complainant] of ‘acting like a bitch’ but repeated ‘bitch’ multiple times when confronted by her. Multiple witnesses testified that the word ‘bitch’ was said several times. The Respondent compounded this unacceptable behavior by subsequently claiming to [complainant's] supervisor that she hit and poked at him. He repeated this claim at his deposition before the Attorney Grievance Committee before ultimately withdrawing this allegation. At the hearing he attempted to differentiate between ‘hitting’ and ‘poking’ to justify his earlier statement."

The Referee noted that an Admonition was issued to respondent for similar misconduct (discourteous behavior directed at a litigant in a landlord and tenant matter) committed on October 22, 2015, but that he otherwise had an unblemished record after being admitted for 36 years. The Referee determined that respondent's claim, that the "atmosphere" at the Brooklyn Housing Court caused his behavior, did not excuse or justify his use of gender pejorative language to opposing counsel and should not be accorded great weight.

The Referee recommended the sanction of a public censure and that respondent be directed to participate in a counseling program under the auspices of the New York City Bar...