Attorney Grievance Comm. v. Zappin (In re Zappin)

• Decision Date: 01 December 2017
• Docket Number: M–4661,5806,5804,6359
• Parties: In the MATTER OF Anthony Jacob ZAPPIN, an attorney and counselor-at-law: Attorney Grievance Committee, for the First Judicial Department, Petitioner, v. Anthony Jacob Zappin, Respondent.
• Court: New York Supreme Court — Appellate Division

160 A.D.3d 1

73 N.Y.S.3d 182

In the MATTER OF Anthony Jacob ZAPPIN, an attorney and counselor-at-law:Attorney Grievance Committee, for the First Judicial Department, Petitioner,

v.Anthony Jacob Zappin, Respondent.

M–4661

5804

5806

6359

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

December 1, 2017

December 14, 2017

March 08, 2018

Jorge Dopico, Chief Attorney, Attorney Grievance Committee, New York (Kevin M. Doyle, of counsel), for petitioner.

Respondent pro se.

Rolando T. Acosta, Presiding Justice, Rosalyn H. Richter, Sallie Manzanet–Daniels, Troy K. Webber, Marcy L. Kahn, Justices.

In the Matter of Anthony Jacob Zappin, An Attorney

PER CURIAM

Respondent Anthony Jacob Zappin was admitted to the practice of law in the State of New York by the First Judicial Department on September 19, 2011. Respondent's current registered address is in West Virginia, where he resides and is admitted to practice.

By unpublished order of October 17, 2016 (October 2016 order), this Court granted the motion of the Attorney Grievance Committee (Committee), finding respondent guilty of professional misconduct and referring the matter to a referee solely to consider evidence in mitigation or aggravation, and thereafter to recommend an appropriate sanction. The Committee sought, and this Court issued, an order pursuant to the doctrine of collateral estoppel based upon the February 29, 2016 order and decision issued in respondent's divorce and custody action (Zappin v. Comfort, Sup Ct, N.Y. County, Cooper, J., index No. 301568/14). Supreme Court's 100–page decision and order had granted respondent's wife sole custody of the couple's then two-year-old son and found that respondent, a pro se litigant: had repeatedly perpetrated acts of domestic violence against his wife; had testified falsely at a custody trial; had knowingly introduced falsified evidence during the proceedings in the form of altered text messages; had presented misleading testimony through his expert witnesses; had, beginning in April 2014, engaged in acts that repeatedly demonstrated disrespect for the court and counsel, by, inter alia, flouting the judicial directives of three judges (a judge of the District of Columbia Superior Court, the original matrimonial judge and the matrimonial judge who made these findings [matrimonial judge] ), setting up a fake website about the attorney for the child by registering her name as a domain name and posting derogatory messages about her on it, and baselessly filing a disciplinary complaint against a court-appointed psychiatric expert witness. Additionally, Supreme Court found that respondent had sent text messages to his wife, an attorney, threatening her with loss of her license to practice law and professional ruin; had made grossly offensive remarks during cell phone conversations with his then three-month-old son in which he baselessly accused his father-in-law of being a child sexual abuser who could harm the child; had engaged in frivolous and abusive litigation against his wife, her parents, and her attorneys; and had attempted to publicly defame the attorney for the child. Based on Supreme Court's decision, applying the doctrine of collateral estoppel, this Court found that respondent had violated New York Rules of Professional Conduct ( 22 NYCRR 1200.0 ) rule 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation); rule 8.4(d) (conduct prejudicial to the administration of justice); rule 3.1

(frivolous litigation); rule 3.3(a)(1) (knowingly make a false statement of fact or law to a tribunal); rule 3.3(a)(3) (knowingly use or offer false evidence); rule 3.3(f)(2) (undignified or discourteous conduct before a tribunal); and rule 8.4(h) (other conduct adversely reflecting on fitness as a lawyer), and directed that a sanction hearing be held.

On December 19, 2016, the sanction hearing was held before a Referee, who recommended that respondent be disbarred. Before the Referee, the Committee read into the record a February 19, 2016 deposition it conducted of respondent in which he admitted that in January 2014 he filed a report with the D.C. police accusing his former wife of perpetrating acts of domestic violence against him, which accusations Justice Cooper found to be entirely unfounded. As mitigation evidence, respondent introduced a limited portion of his deposition testimony in which he made reference to the fact that he was in counseling during his senior year in college and again sporadically while in law school, that he took antidepressants while in college, and in high school, he volunteered with the homeless. He also introduced a letter from his therapist, in which she stated that she had sporadically treated respondent over the course of two years but starting in April 2016 he consistently attended therapy on a biweekly basis. He also introduced four letters from character witnesses, and maintained that any misconduct on his part occurred solely in the context of his custody dispute.

The Referee rejected respondent's mitigation evidence, finding incredible respondent's accusations of domestic violence by his then-former wife, noting their rejection by both the D.C. police and the courts in D.C. and New York; that respondent's deposition testimony as to the sporadic counseling he received in law school and his occasionally taking antidepressants while in college did not constitute mitigation; that his charitable work was insignificant; and that his therapist's letter and the similarly worded letters of four character witnesses provided no basis for mitigation. The Referee opined that while respondent's good conduct during the sanction hearing supported his contention that his disruptive courtroom behavior was confined to the custody litigation, nonetheless, such good behavior is required of lawyers at all times and, thus, did not mitigate his prior misconduct.

As to his ultimate conclusion, the Referee opined:

"[Respondent's] numerous instances of misbehavior may have all occurred in the same litigation, but it was extensive and unbridled. He accused and abused three judges in two states, lied continuously, condoned others' perjury, altered documents, physically abused his wife, and more, during years of litigation. There are no significant mitigating circumstances, but [respondent's] lack of remorse and evident lack of respect for the judicial process are serious aggravating factors. The record demonstrates [respondent's] unfitness for the practice of law, from which the public should be protected by ordering his disbarment."

The Committee now moves this Court to affirm the Referee's report and recommendation of disbarment. The Committee argues that respondent's misconduct in terms of its scope, duration, ferocity, and maliciousness, coupled with his failure to admit any wrongdoing whatsoever, even in the face of this Court's prior finding of guilt, demonstrates that he is presently unfit to practice law. The Committee has not submitted a memorandum of law but relies on the parties' posthearing submissions to the Referee.

Respondent opposes the motion and has additionally filed three motions seeking affirmative relief. The first motion (M–5804) seeks vacatur of our October 2016 order finding him guilty of professional misconduct, finding it constitutionally infirm, and requests a hearing before a different referee and transfer of the matter to a different Judicial Department of the Appellate Division, due to alleged conflicts on the part of members of this Court¹ (vacatur motion); the second (M–5806) seeks vacatur of that same order on the basis of his allegations of fraud on the part of the Committee, an order directing the Committee to produce all exculpatory documents in its possession, transference of this matter to another Attorney Grievance Committee, a stay of this proceeding pending resolution of the motion and imposition of sanctions against the Committee's counsel (fraud motion); and the third (M–6359) seeks vacatur of certain misconduct findings in our collateral estoppel order, a new sanctions hearing, an order striking the Committee's reply in support of its motion to affirm the Referee's report and imposition of sanctions against the Committee's counsel (sanctions motion).

In support of his position opposing his disbarment, respondent argues that it would be fundamentally unfair to discipline him pursuant to the doctrine of collateral estoppel and that this matter should be remanded to the Committee for investigation and the filing of formal charges, if warranted. He further maintains that he was not given notice and a full and fair opportunity to be heard in the custody litigation. These same arguments were previously raised before us and rejected in our October 2016 order.

Respondent next contends that Supreme Court's findings were biased and that the underlying proceedings were constitutionally tainted. This argument is refuted by our affirmance of Supreme Court's decision in respondent's custody case (see Zappin v. Comfort, 155 A.D.3d 497, 65 N.Y.S.3d 30 [1st Dept. 2017], supra ). Respondent also urges that he should not be disciplined based on Supreme Court's findings because the New York City Bar Association (N.Y.CBA) has taken the position that only "extreme circumstances" warrant giving collateral estoppel effect to a prior order; that the Committee proceeded by way of a collateral estoppel motion because the Committee knew formal charges based on the conduct at issue would not be sustained; that he has no prior disciplinary history and has never been the subject of misconduct allegations related to his private practice of law; that subsequent to the entry of final judgment in his divorce/custody case he has not engaged in any misconduct; and that he has completely cooperated with the Committee, whose staff counsel, respondent alleges, has engaged in prosecutorial and ethical misconduct.

The Committee replies that this Court's determination to give collateral estoppel effect...