In The Matter Of Monaghan

295 A.D.2d 38, 743 N.Y.S.2d 519 (2002)

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Nature of the Case

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Facts

D represented Patricia Fater-Parsons at her depositions on February 15, 1996, and March 22, 1996. Gail A. Perry, a black woman, conducted the deposition on behalf of the Department of Labor. D engaged in a continuing harangue of Perry for her alleged mispronunciation of the words 'establish' and 'especially.' The Department of Labor moved in the SDNY to impose costs and sanctions against D based on his disruptive conduct during the Fater-Parsons deposition. At a hearing on June 11, 1996, before Judge Mukasey with respect to the motion for costs and sanctions, D continued to insist that Perry was guilty of glaring mispronunciations. That hearing was unrelated to any disciplinary proceeding in the SDNY. Despite a warning from Judge Mukasey that he would be referred to the disciplinary committee for his personal attacks on Perry, D persisted in his efforts to justify his conduct. Judge Mukasey ordered D to pay $500 in fines and costs. Four months later, D sent Perry a letter of apology, dated November 6, 1996, in which he acknowledged, to his 'extreme embarrassment,' that his 'language and tone were unwarranted and inappropriate under the totality of circumstances surrounding the entire unfortunate incident.' D conceded that his conduct was in violation of the Code of Professional Responsibility DR 1-102 (a) (5) (engaging in conduct prejudicial to the administration of justice) and (6) (unlawfully discriminating in the practice of law on the basis of age, race, creed, color, national origin, sex, disability, marital status, or sexual orientation). D and the prosecuting attorney stipulated that a public censure was the appropriate sanction for the disciplinary violations involved. Jed S. Rakoff, Chair, Committee on Grievances, SDNY, directed that D 'be publicly censured for his race-based abuse of opposing counsel in violation of DR 1-102 (a) (5) and (a) (6).' D raised an affirmative defense regarding the infirmity of proof establishing the misconduct, solely with respect to the finding that his misconduct was race-based. The Special Referee found D's 'crude and offensive conduct and language to be substantially more likely to have been gender-related rather than race-related.' The Special Referee found no evidentiary grounds to support the order. The Special Referee sustained the affirmative defense raised by D. D moved to have the finding sustained.