In re Joffe
| Docket Number | Motion No. 2023-03320,2023-03780,(OCA ATTY. Reg. No. 2990828) |
| Decision Date | 30 November 2023 |
| Citation | 2023 NY Slip Op 06205 |
| Parties | In the Matter of Dimitry Joffe, an Attorney and Counselor-at-Law: Attorney Grievance Committee for the First Judicial Department, Petitioner, Dimitry Joffe, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Disciplinary proceedings instituted by the Attorney Grievance Committee for the First Judicial Department. Respondent, Dimitry Joffe was admitted to the Bar of the State of New York at a Term of the Appellate Division of the Supreme Court for the First Judicial Department on July 27, 1999.
Jorge Dopico, Chief Attorney, Attorney Grievance Committee, New York
(Naomi F. Goldstein, of counsel), for petitioner.
Respondent, pro se.
Lizbeth González Tanya R. Kennedy Julio Rodriguez III Bahaati E. Pitt-Burke Justices.
Respondent Dimitry Joffe was admitted to the practice of law in the State of New York by the First Judicial Department on July 27, 1999. At all times relevant to this proceeding respondent maintained a registered business address within the First Judicial Department.
This matter arises out of respondent's conduct after he was admitted pro hac vicein March 2016 to serve as the plaintiffs' lead and effectively only counsel in a case before the U.S. District Court for the District of Massachusetts. [1] In November 2020, the plaintiffs obtained new counsel, but the defendants nevertheless moved for sanctions and to refer respondent for disciplinary proceedings on account of his inappropriate behavior throughout the litigation process. Respondent opposed and the plaintiffs' new counsel moved for respondent's withdrawal, which the court allowed subject to resolution of the motion for referral. By January 12, 2021 order and decision, the district court found that there was credible evidence that respondent likely committed professional misconduct and granted the defendants' motion to the extent of referring the matter to the presiding judge for review and possible disciplinary action.
By order dated September 7, 2021, the District of Massachusetts found that there was clear and convincing evidence that respondent had engaged in litigation-related professional misconduct, including, inter alia, attempting to represent his clients without local counsel; repeatedly failing to conform his clients' second amended complaint to Federal Rules of Civil Procedure 8 () and 9 (requiring that fraud claims must be pled with particularity) despite repeated warnings to do so; failing to produce appropriately relevant documents after litigation was reasonably anticipated; repeatedly interrupting proceedings even after he was judicially reprimanded; failing to comply with rules governing discovery motions; repeatedly failing to include memoranda with motions despite repeated specific warnings; repeatedly failing to confer with opposing counsel; repeatedly missing discovery deadlines; and repeatedly and brazenly threatening an opposing party with criminal prosecution during a deposition.
The district court directed respondent to file both the order that set forth its findings and the referral order that initiated the disciplinary proceedings with all jurisdictions in which he is admitted. Respondent must also file the orders with all jurisdictions in which he presently appears, seeks to appear pro hac vice, or seeks admission for a period of five years. No additional discipline was imposed. The United States Court of Appeals for the First Circuit affirmed on appeal.
The Attorney Grievance Committee (AGC) now seeks an order, pursuant to Judiciary Law § 90(2), the Rules For Attorney Discipline Matters (22 NYCRR) § 1240.13, and the doctrine of reciprocal discipline, finding that respondent has been disciplined by a foreign jurisdiction, directing him to demonstrate why discipline should not be imposed in New York for the misconduct underlying his discipline by the federal court, and suspending him for three months, or, in the alternative, sanctioning respondent as this Court deems appropriate. Respondent opposes the imposition of reciprocal discipline.
In a proceeding seeking reciprocal discipline pursuant to 22 NYCRR 1240.13, respondent may raise the following defenses: (1) a lack of notice or opportunity to be heard in the foreign jurisdiction constituting a deprivation of due process; (2) an infirmity of proof establishing the misconduct; or (3) that the misconduct for which the attorney was disciplined in the foreign jurisdiction does not constitute misconduct in this state. The AGC argues that none of the enumerated defenses apply here because "[r]espondent cannot claim that he lacked due process or there was insufficient evidence," as "[h]e filed a lengthy Declaration in response to the order to show cause, and a sanction hearing was conducted at his request and "the misconduct in which respondent engaged in Massachusetts also constitutes misconduct in New York, in violation of [] New York Rules of Professional Conduct."
As to sanction, the AGC notes that in reciprocal discipline cases, this Court generally defers to the sanction determination in the foreign jurisdiction. The AGC nevertheless argues that the general rule does not apply in this case because "[t]his reciprocal proceeding is unique in that specific discipline was not imposed" and that "Massachusetts has essentially deferred to this Court and any other Court in which respondent is admitted to the bar."
By affirmation, respondent opposes and asserts the infirmity of proof defense. He argues that his amended complaints were compliant with federal rules and that his second amended complaint was ultimately accepted and remained the operative pleading. Respondent further asserts that, by arguing that local counsel was not required in response to local counsel's motion to withdraw, he was not violating a court directive/rule, but rather was making a good faith argument in support of his position. Respondent considers his production of voluminous nonresponsive electronic discovery to be a "mist...
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