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In re Myerowitz

Supreme Court of New Jersey

April 24, 2018

IN THE MATTER OF HOWARD Z. MYEROWITZ AN ATTORNEY AT LAW

          Argued: November 16, 2017 [1]

          Argued: March 15, 2018

          Hillary K. Horton appeared on behalf of the Office of Attorney Ethics.

          Ellen A. Brodsky, Chief Counsel

         Respondent appeared pro se.

          DECISION

          BONNIE C. FROST, CHAIR

         To the Honorable Chief Justice and Associate Justices of the Supreme Court of New Jersey.

         This matter was before us on a motion for reciprocal discipline filed by the Office of Attorney Ethics (OAE), following respondent's January 28, 2016 indefinite suspension in the United States District Court for the Southern District of New York (SDNY), for his violation of the New York equivalent of New Jersey RFC 3.3(a)(1) (false statement of material fact or law to a tribunal); RPC 3.4(c) (knowingly disobeying an obligation under the rules of a tribunal); RFC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation), and RPC 8.4(d) (conduct prejudicial to the administration of justice). The OM! seeks a reprimand or censure. For the reasons stated below, we determine to impose a censure.

         Respondent was admitted to the New Jersey bar in 1999 and the New York bar in 2000. He has no history of discipline in New Jersey.

         On October 7, 2014, the Honorable Denise L. Cote, U.S.D.J., in the SDNY, issued an order finding good cause that, during the course of his representation of defendants in a trademark infringement suit, respondent had made misrepresentations to the court. A hearing on the matter was scheduled for October 23, 2014. The order detailed the relevant parts of the procedural record. Those facts are as follows.

         Summary judgment motions in the trademark infringement litigation were due on September 10, 2014. In a letter, dated September 10, 2014, respondent requested a two-day extension, citing the need for extensive redactions to his summary judgment papers. On September 10, 2014, the Court granted an extension for redactions only, but ordered that summary judgment motions were still due that same day. Nonetheless, two days later, on September 12, 2014, respondent requested an extension of time to file the defendants' motion. Respondent claimed that both of the firm's paralegals had been sick, making the preparation of the numerous exhibits difficult. Also on September 12, 2014, the plaintiffs wrote to the Court, explaining that they had received respondent's summary judgment papers at the "stroke of midnight of September 10" with only eleven paragraphs. Finally, on September 13, 2014, respondent filed a supplemental statement with twenty-three new paragraphs, a new notice of motion, and a new signed declaration. On September 15, 2014, the Court denied defendants' summary judgment motion for failure to timely file.

         Despite the denial, opposition to the plaintiffs' summary judgment motion was due September 29, 2014. On that date, however, respondent requested the Court to grant an extension to October 1, 2014, representing that a computer crash had corrupted some of the necessary files. The Court granted the extension. On October 1, 2014, respondent wrote to the Court to request an additional one-day extension. He claimed that the computer crash warranted a three-day extension all along, but that he had requested only two additional days because the plaintiffs would not consent to a longer extension. The Court granted the request, but noted the continued failure of the defendants to meet their filing deadlines, and cautioned that future extensions would not be permitted.

         On Friday, October 3. 2014, the plaintiffs informed the Court that the defendants had not yet served their opposition papers. On October 6, 2014, respondent represented to the Court that he checked with his paralegal, who "assured" him that the plaintiffs were served by mail on Thursday, October 2, 2014. in response, the Court noted that all documents should have been filed electronically and that the defendants' memorandum of law bore the "legend 'ELECTRONICALLY FILE' on its cover page and include[d] a certificate of service electronically signed by respondent that states the memorandum of law 'was served electronically' upon plaintiffs" counsel."

         Also on Monday, October 6, 2014, plaintiffs informed the Court that they had requested an electronic service copy from respondent the prior Thursday evening and Friday morning, but did not receive a response. They further explained that they had "received the mailed copy of the Opposition Papers on October 6 and attach[ed] a copy of the mailing label, which appears to indicate that the Opposition Papers mailed to plaintiffs' counsel departed Newark Liberty international Airport at 7 a.m. on October 5."

         in a, reply dated October 7, 2014, respondent represented to the Court that the opposition papers had been mailed on October 2, 2014, and that the only member of his firm familiar with uploading documents into the electronic filing system was unavailable "when service was effected." Respondent explained that the legend and certificate of electronic service he signed was a "copy-and-paste typographical error." Further, concerning the date of the package's departure from Newark, he noted that, "[d]efendants do not control the post office or whatever special routing procedures govern in shipping to Dallas."

         That same day, October 7, 2014, Judge Cote issued her order setting forth a hearing date of October 23, 2014, regarding respondent's misconduct, including misrepresentations to the Court and to plaintiffs' counsel. Judge Cote also ordered a file examination.

         Two days later, on October 9, 2014, respondent wrote a letter to Judge Cote and to plaintiffs' counsel, apologizing for filing the opposition late, and for misrepresenting that the papers had been mailed on Thursday, October 2, 2014, when they had been mailed on Friday, October 3, 2014. He accepted "full responsibility" for the incident, and claimed to be "shamed and mortified." He also offered to e-mail his brief and supporting papers to plaintiffs' counsel for a determination of when the submission was completed. Respondent requested that such submission serve to substitute for the "presently ordered file examination" due to his concern that such an examination could potentially jeopardize the attorney-client relationship. He also represented that he would be present at the hearing.

         On November 4, 2014, Judge Cote began the first of two sanctions hearings: one "with respect to the conduct of the defendants in this case," and a second "with respect to the conduct of defense counsel." On November 5, 2014, the first hearing concluded, and Judge Cote began the second hearing on respondent's alleged falsification of the filing date of the opposition papers. During that hearing, Judge Cote noted that respondent admitted that he did not mail the defendants' opposition papers on October 2, 2014; rather, they were mailed on October 3, 2014.

         Respondent admitted at the hearing that he was the principal author of the opposition papers; that he had not completed the opposition papers until late in the afternoon of October 3, 2014; that his assertion in his letter of October 6, 2014 that he had checked with his paralegal and was assured that the papers had been mailed on October 2, 2014 was untrue; and that he indicated falsely, in his October 7, 2014 letter, that the plaintiffs' claims regarding his late filing were untrue. Respondent's paralegal, Tim Rhee, testified that he mailed the documents between 5:30 and 6:30 p.m., on October 3, 2014.

         On November 6, 2014, Judge Cote ordered respondent to pay a $10, 000 fine to the Clerk of Court for the SDNY, by November 14, 2014, as a sanction for the series of misrepresentations made to the Court. Judge Cote additionally referred the matter to the Committee on Admissions and Grievances for the SDNY (the Committee) and ordered respondent to provide a copy of her order to the disciplinary committees of each bar where he was licensed to practice law.

         On December 12, 2014, upon request, respondent was given permission to pay the fine in monthly installments of $1, 000, and the court ordered him to make his first two payments by January 5, 2015, or show cause, on January 29, 2015, why he could not.

         On January 14, 2015, the Honorable P. Kevin Castel, U.S.D.J., the Committee Chair, issued an order to show cause why respondent should not be disciplined, based on his conduct before Judge Cote. The order noted that respondent's conduct appeared to violate the following New York Rules of Professional Conduct: RPC 3.3(a) (false statements to a tribunal); RPC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation); RPC 8.4(d) (conduct prejudicial to the administration of justice); and RPC 8.4(h) (conduct that ...


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