The Appellate Division, First Department, at 27 Madison Ave. (NYLJ/Rick Kopstein)
Citing his financial hardships and pro bono work, a state appeals court has chosen to publicly censure, rather than suspend or disbar, a veteran New York lawyer who disregarded some 25 court orders in 11 different federal lawsuits.
A unanimous panel of the Appellate Division, First Department, also relied heavily on the Eastern District’s previous decision to censure attorney Joel Gluck when arriving at its punishment.
“As a general rule in reciprocal disciplinary matters, this court gives significant weight to the sanction imposed by the jurisdiction in which the charges were initially brought,” the panel wrote in Matter of Gluck, 2017 NY Slip Op 06052.
Gluck’s lawyer, meanwhile—a former chief counsel to the First Department’s grievance committee throughout the 1980s and the prosecutor who helped secure the disbarment of flamboyant lawyer Roy M. Cohn—said Thursday that the way his client handled the charges against him, remaining “candid, contrite and cooperative” throughout the process, helped him avoid a harsher result.
“Generally speaking, when there are disciplinary charges, the way the attorney handles the situations matters,” said Michael Gentile, now in solo private practice. “In this case, Mr. Gluck was fully cooperative with the committees, he never contested the charges, he was basically candid, contrite and cooperative.”
The First Department panel, quoting the 2015 findings of the Eastern District’s Committee on Grievances, wrote that Gluck had disregarded “multiple court orders in more than 10 federal actions, fail[ing] to appropriately communicate with clients and the court and delay[ing] numerous litigations to the detriment of clients and adversaries.”
In five of the cases, he “displayed incompetence when he failed to diligently comply with court-ordered deadlines and to appear at scheduled court conferences …, needlessly delayed litigation …, acted unfairly towards opposing parties and counsel … and engaged in improper conduct before a tribunal,” the panel said.
Moreover, in those five cases “the court imposed sanctions or threatened to sanction [Gluck] on several occasions.” And in three lawsuits, there was “ample evidence that [Gluck] failed to fulfill his obligation to communicate with his clients regarding critical developments,” the panel wrote.
According to the Committee on Grievances, Gluck violated New York Rules of Professional Conduct, including rules 1.1 (competence), 1.3 (lack of diligence), 1.4 (failure to communicate with client), 3.2 (delay of litigation), 3.3 (conduct before a tribunal), 3.4 (fairness to opposing party and counsel) and 8.4 (misconduct).
The panel—consisting of Justices David Friedman, Sallie Manzanet-Daniels, Karla Moskowitz, Barbara Kapnick and Troy Webber—was asked by the First Department’s attorney grievance committee to issue an order finding that Gluck had been disciplined by a foreign jurisdiction, and directing him to demonstrate to the First Department why discipline should not be imposed at the state-level based on his conduct.
But Gluck consented to the state grievance committee’s motion and waived any rights to assert defenses. He also asked that if discipline was imposed, that it be a public censure.
That meant that the only issue the panel had to decide was the appropriate sanction for Gluck, the justices wrote.
They further noted in their Aug. 8 opinion that “only in rare instances will this court depart from its general rule” of giving significant weight to the foreign jurisdiction’s choice of punishment.
“While [Eastern District's Committee on Grievances] noted that the extent of the misconduct at issue could have resulted in discipline beyond a reprimand, in light of [Gluck's] financial hardships and his willingness to represent individuals for little or no compensation, a reprimand was appropriate,” the panel decided. “Furthermore, there is no mention of a prior disciplinary history, [Gluck] cooperated with the federal grievance committee and consents to the instant motion, and a censure is in accord with the mitigation presented and this court’s precedent under similar circumstances.”
The justices further pointed out that the Committee on Grievances had found that Gluck, a solo practitioner who was admitted to the First Department in 1982, had raised mitigating factors affecting his behavior, including his “financial and personal difficulties throughout 2012 and 2013, which ultimately forced him to close his law office in May 2013.”
Moreover, said the panel, the Committee on Grievances had “noted [Gluck's] effort to represent individuals who might not otherwise obtain counsel.”
Gentile said that Gluck, who had an office in Brooklyn and later in Manhattan, centered much of his “high volume” practice on helping clients with Social Security and workers’ compensation issues. He added that some clients had difficulty making payment.
“What happens in situations where single practitioners have a volume business, oftentimes it can work,” Gentile said. “The times that it doesn’t work is when personal problems enter the situation and make it more difficult to juggle that many cases.”
While the First Department decision did not detail the financial or other hardships Gluck suffered, the 2015 order from the Eastern District did. It noted that Gluck claimed “severe financial and personal difficulties throughout 2012 and 2013,” including struggling “to make payroll, to maintain basic office expenses and to cover litigation costs, and … that he had to manage his heavy caseload with minimal office support, which was further strained by the illnesses of his wife and office manager.”
He also maintained, the Eastern District said, “that he did not intentionally disregard court orders or delay litigation, and that he has since worked diligently to remedy his financial circumstances.” He added that he dealt with some “difficult clients who were ultimately satisfied … and who would have encountered difficulties obtaining counsel absent his representation.”
Michael Frisch, a Georgetown Law ethics professor and formerly a 17-year grievance prosecutor for the District of Columbia’s Court of Appeals, said Thursday that the Eastern District committee “was pretty lenient” on Gluck, and that he was somewhat fortunate the First Department handed down the same punishment.
That said, “the attitude of any lawyer to the matters under investigation is hugely important to what ultimate sanctions are given,” according to Frisch.
“You’re dealing with what’s called a self-regulating profession,” he said. “Basically, you have lawyers judging other lawyers, ultimately reviewed by courts, and one of the important things to consider is the likelihood of future misconduct, and when a lawyer says, ‘I messed up and I won’t do it again,’ that has a big impact.”
Frisch also pointed out a federal court’s sanctions only affect the lawyer’s ability to practice in that court, whereas the state court’s discipline can affect his or her ability to practice statewide. Moreover, other states will often follow the home state’s discipline. He further noted that the real issue for counsel representing accused lawyers is the fight to obtain a public reprimand and not a suspension. Once a lawyer’s license is suspended, they must notify clients and withdraw from cases, he said.
“The fact of the matter is that Mr. Gluck never did anything venal,” Gentile said Thursday. “There was no venality here.”
A call to the First Department’s Attorney Grievance Committee was not returned. Naomi Goldstein, a committee attorney, represented it before the panel.