Attorney Grievance v. Lefkowitz

Attorney Grievance Commission of Maryland v. Jon A. Lefkowitz, Misc. Docket AG No. 29, September Term 2018. Opinion by Hotten, J. ATTORNEY DISCIPLINE – RECIPROCAL DISCIPLINE – DISBARMENT The Court of Appeals disbarred Respondent, Jon A. Lefkowitz, who violated Maryland Attorneys’ Rules of Professional Conduct 19-308.4(a), (b), (c), and (d). These violations were based on Respondent’s conduct which resulted in his conviction of criminal facilitation in the fourth degree pursuant to New York Penal Law § 115.00(1).

Respondent was suspended from the practice of law in the State of New York based on this conduct. The Court found clear and convincing evidence that Respondent’s conduct was an exceptional circumstance and warranted substantially different discipline in Maryland under Maryland Rule 19-737(e). The deceitful and dishonest nature of Respondent’s actions, as well as Respondent’s failure to show any level of remorse before the Court of Appeals, is prejudicial to the administration of justice and warrants disbarment rather than a reciprocal discipline of suspension as imposed by the State of New York. Argued: March 1, 2019 IN THE COURT OF APPEALS OF MARYLAND Misc.

Docket AG No. 29 September Term, 2018 __________________________________ ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. JON A. LEFKOWITZ __________________________________ Barbera, C.J., Greene, McDonald, Watts, Hotten, Getty, Adkins, Sally D., (Senior Judge, Specially Assigned) JJ. __________________________________ Opinion by Hotten, J. __________________________________ Filed: March 29, 2019 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2019-08-20 11:15-04:00 Suzanne C. Johnson, Clerk On October 25, 2018, the Attorney Grievance Commission of Maryland, acting through Bar Counsel (“Petitioner”), filed a Petition for Disciplinary or Remedial Action against Jon A. Lefkowitz (“Respondent”). The petition alleged that Respondent violated Maryland Attorneys’ Rules of Professional Conduct (“MARPC”) 19-308.4(a), (b), (c), and (d)1 based on conduct which resulted in his conviction of criminal facilitation in the fourth degree2 by the Appellate Division of the Supreme Court in the Second Judicial Department of New York. Respondent was suspended from the practice of law in New York for two- years as a result of this conduct. In response to the Petition, and in accordance with Maryland Rule 19-737(c), this Court issued a Show Cause Order on October 26, 2018, directing Petitioner and Respondent to “show cause in writing based upon any grounds set forth in Maryland Rule 19-737(c) why corresponding discipline [or inactive status] should not be imposed.” Both Petitioner and Respondent timely responded to the Show Cause Order, and oral argument 1 Effective July 1, 2016, the Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) were renamed the Maryland Attorneys’ Rules of Professional Conduct (“MARPC”) and re-codified, without substantive change, in Title 19 of the Maryland Rules.

Respondent’s misconduct occurred prior to the recodification. For purposes of consistency, and because the Rules are substantively the same, we refer to them as they are currently codified as MARPC throughout this opinion. 2 New York Penal Law § 115.00 provides in pertinent part: A person is guilty of criminal facilitation in the fourth degree when, believing it probable that he is rendering aid: 1. to a person who intends to commit a crime, he engages in conduct which provides such person with means or opportunity for the commission thereof and which in fact aids such person to commit a felony[.] before this Court took place on March 1, 2019. For the reasons outlined below, we order Respondent disbarred from the practice of law in the State of Maryland. FACTUAL AND PROCEDURAL BACKGROUND Respondent was admitted to the New York State Bar on January 5, 1994 and the Maryland State Bar on July 6, 1994.3 On May 11, 2016, Respondent pled guilty before the Onondaga County Court of New York to one count of criminal facilitation in the fourth degree, N.Y. Penal Law § 115.00 (1), and entered into a plea and cooperation agreement.

In addition to pleading guilty, the agreement provided that: Respondent waive his right to appeal the guilty plea; Respondent acknowledge that his license to practice law may be negatively impacted; Respondent shall fully cooperate with any investigation conducted by the New York Office of the Attorney General (“OAG”); Respondent inform the OAG if he plans to travel outside of the tri-state (New York, New Jersey, Connecticut) area; and Respondent shall refrain from committing any other crimes. On May 12, 2017, Respondent was sentenced to a one-year conditional discharge.4 The conduct leading to Respondent’s guilty plea occurred in connection with a criminal case in which the State of New York prosecuted Respondent’s cousin and his cousin’s wife, Alexander March and Sima March respectively, for mortgage fraud. At the Respondent maintains that he “do[es] not practice law in Maryland, and never did, 3 and probably never will.” 4 When a conditional discharge is issued, “the defendant shall be released with respect to the conviction for which the sentence is imposed without imprisonment or probation supervision but subject, during the period of conditional discharge, to such conditions as the court may determine.” N.Y. Penal Law § 65.05 (2). 2 time, Mr. and Ms. March were in Canada, fighting extradition to New York. Mr. March secured Respondent’s assistance in seeking testimony from a witness in the mortgage fraud case who had provided grand jury testimony against Mr. and Ms. March.

In Respondent’s response to this Court’s Show Cause Order, he explains that Mr. March asserted that the Attorney General of the State of New York inaccurately represented the witness’s testimony to the Canadian authorities, and that he wished to acquire and provide “the actual testimony and true facts to the Canadian Appellate Court[.]” In accordance with Mr. March’s request, Respondent obtained and prepared a subpoena template from the New York Unified Court System website.5 The subpoena, addressed to a Ms. Jacqueline Watkins, stated as follows: WE COMMAND YOU, that all business and excuses being laid aside, answer the attached questionnaire, under oath, and return it to the Law Office of Jon Ari Lefkowitz PC, on or before the 17[th] day of January 2014. *** Failure to comply with this subpoena is punishable as contempt of Court and shall make you liable to the person on whose behalf this subpoena was issued for a penalty not to exceed fifty dollars and all damages sustained by reason of your failure to comply. WITNESS, Honorable Donald A. Greenwood, one of the judges of said Court at Syracuse, New York on the 15[th] day of Nov[.], 2013. The subpoena was neither directed nor authorized by Judge Greenwood. Neither the Honorable Judge Greenwood’s signature, nor Respondent’s signature, appeared on the 5 The subpoena template and the accompanying instructions that were utilized by Respondent can be viewed at: https://www.nycourts.gov/courts/6jd/forms/SRForms/subpducestecum_instructwithsamp. pdf, archived at https://perma.cc/VA8D-XDYP. 3 subpoena.

However, a signature line with Respondent’s name, address, and title as “Attorney for Sima March” below it, appeared in the bottom right corner of the form. At his plea hearing before the County of Onondaga Court on May 11, 2016, Respondent admitted to the following:6 [O]n or about November 22, 2013, believing it probable that [he was] rendering aid to Alexander March, who intended to commit a crime in Onondaga [C]ounty, that [he] engaged in conduct which provided Alexander March with the means and opportunity through the commission thereof and which in fact aided Alexander March to commit the felony of forgery in the second degree, in violation of Penal Law Section 170.10 Subdivision 1; to wit, with knowledge that it would be served, [he] drafted a judicial subpoena that purported to be witnessed by a Supreme Court judge that ordered a witness to answer a written questionnaire under oath and under penalty of contempt in regards to the matter of the People of the State of New York v. Sima [] March and Alexander March. On May 12, 2017, Respondent was sentenced to a one-year discharge, conditioned upon the accompanying plea agreement. On March 23, 2017, Respondent was suspended from the practice of law in the State of New York pursuant to New York Judiciary Law § 90(4)(f),7 based on his conviction of criminal facilitation in the fourth degree, categorized as a serious crime, relative to the above admitted conduct.

On July 19, 2017, Respondent was ordered by the Supreme Court 6 The circumstances under which Respondent’s conduct was brought to the attention of the New York State authorities is unclear. 7 N.Y. Jud. Law § 90 (4)(f) provides: Any attorney and counsellor-at-law convicted of a serious crime, as defined in paragraph d of this subdivision, whether by plea of guilty or nolo contendere or from a verdict after trial or otherwise, shall be suspended upon the receipt by the appellate division of the supreme court of the record of such conviction until a final order is made pursuant to paragraph g of this subdivision. 4 of the State of New York Appellate Division, Second Judicial Department (the “New York Court”) to show cause at a hearing as to why an order of suspension, censure, or disbarment should not be imposed upon his license to practice law in the State of New York. Before the New York Court, Respondent requested a sanction no greater than a public censure, pointing to the following mitigating factors: he harbored no intent to deceive; he acted in good faith by using a subpoena form that he had previously used without difficulty; he was merely attempting to help a cousin; he did not act for financial gain; he made a mistake, which he vowed to never repeat; and he had an excellent reputation as an attorney who cares deeply about his clients. The New York Court concluded that [n]otwithstanding the above mitigation, the respondent’s conduct on its face created a deception.

Not only had Judge Greenwood not signed the subpoena, but the respondent had not entered an appearance on behalf of his cousin or his cousin’s wife. Yet, the respondent interjected himself into a criminal proceeding by providing the subpoena to his cousin for the purpose of evading extradition. The conclusion that the respondent’s conduct constituted a knowing, direct, and intentional interference in the judicial process is inescapable as he admittedly attempted to assist his cousin in evading extradition. On July 11, 2018, the New York Court suspended Respondent from the practice of law in the State of New York for two years, giving credit to the time that had elapsed since Respondent was summarily suspended on March 23, 2017 pursuant to N.Y. Judiciary Law § 90 (4)(f).

Respondent promptly notified the Maryland State Bar of his suspension, after which the current proceedings before this Court were initiated. STANDARD OF REVIEW As a general matter, the petitioner in attorney grievance matters has the burden of proving the allegation against the respondent by clear and convincing evidence. Att’y 5 Griev. Comm’n v. Edib, 415 Md. 696, 706 , 4 A.3d 957, 964 (2010); see also Md. Rule 19- 727(c).

In reciprocal discipline cases, the findings of fact and conclusions of law in the original jurisdiction are conclusive evidence of an attorney’s misconduct. [Md. Rule 19-737(g)]. In our independent review of the record, we accept the hearing judge’s findings of fact unless they are clearly erroneous. Conclusions of law are reviewed essentially de novo. As a result, it is this Court who decides whether a lawyer has violated the [Maryland Attorneys’ Rules of Professional Conduct].

Att’y Griev. Comm’n v. Weiss, 389 Md. 531, 545 , 886 A.2d 606, 614 (2005) (internal citations and quotations omitted). While we are often “inclined . . . to impose the same sanction as that imposed by the state in which the misconduct occurred[,]” we are not required to reach such a conclusion. Id. at 546 , 886 A.2d at 615 .

We may depart from the discipline imposed by another jurisdiction where we find clear and convincing evidence that exceptional circumstances exist to warrant a “substantially different discipline[.]” Md. Rule 19-737(e). We have “the long-established duty to impose discipline that is consistent with our attorney disciplinary jurisprudence by assessing, independently, the propriety of the sanction imposed by a sister jurisdiction, as well as the sanction recommended by Bar Counsel.” Att’y Griev. Comm’n v. Katz, 429 Md. 308, 317 , 55 A.3d 909, 914 (2012). “We impose corresponding discipline only if the purpose of the originating jurisdiction’s sanction is congruent with ours, while remaining cognizant that ‘[o]ur purpose in attorney discipline cases is the protection of the public, rather than the punishment of the erring attorney.’” Att’y Griev. Comm’n v. Peters-Hamlin, 447 Md. 520, 538-39 , 136 A.3d 374 , 6 384-85 (2016) (citing Att’y Griev.

Comm’n v. Gordon, 413 Md. 46, 56 , 991 A.2d 51 , 56- 57 (2010)). DISCUSSION Respondent is charged with violating MARPC 19-308.4(a), (b), (c), and (d). Rule 19-308.4 provides in pertinent part: It is professional misconduct for an attorney to: (a) violate or attempt to violate the Maryland Attorneys’ Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the attorney’s honesty, trustworthiness or fitness as an attorney in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice[.] Clear and convincing evidence exists to establish that Respondent violated MARPC 19- 308.4(a), (b), (c), and (d), as alleged by Petitioner. The Supreme Court of the State of New York observed that Respondent’s “conduct on its face created a deception.” We agree that Respondent’s drafting of a judicial subpoena that wrongly asserted to be witnessed by a New York State judge was intentionally dishonest and deceitful in violation of MARPC 19-308.4(c).

Furthermore, Respondent was convicted of the crime of criminal facilitation in the fourth degree as a result of his conduct in violation of MARPC 19-308.4(b). These actions “bring[] the legal profession into disrepute[]” and negatively impact the public’s perception of the legal profession, violating MARPC 19-308.4(d). Att’y Griev. Comm’n v. Mitchell, 445 Md. 241, 262 ,