Opinion
01-CV-0545E(Sr)
October 31, 2001
ORDER and MEMORANDUM
Plaintiff initiated this action July 30, 2001. On August 24, 2001 he filed an Amended Complaint and a motion for a preliminary injunction. Plaintiff seeks a declaration that New York Disciplinary Rule ("DR") 2-105(c)(1), 22 N.Y.C.R.R. § 1200.10 — which governs statements by attorneys that they are specialists in a particular area of law is both facially unconstitutional and unconstitutional as applied to his use of the terms "Board Certified Civil Trial Specialist" and/or a "Board Certified Civil Trial Advocate" "National Board of Trial Advocacy" in his advertising and a preliminary injunction enjoining defendants the State of New York Attorney Grievance Committee of the Eighth Judicial District ("Grievance Committee") and Nelson F. Zakia, Esq. in his capacity as Chairman of the State of New York Attorney Grievance Committee of the Eighth Judicial District ("Zakia") from proceeding with disciplinary proceedings against him for allegedly violating DR 2-105 (c)(1) by using such terms in his advertisements. This Court has jurisdiction over this case pursuant to 28 U.S.C. § 1331, 1343(3), 1367(a) and 2201 and 42 U.S.C. § 1983. During oral argument on plaintiff's motion for a preliminary injunction on September 21, 2001, defendants raised the issue. Inasmuch as this issue was not included in their papers in opposition to plaintiff's motion for a preliminary injunction, this Court allowed them to file a supplemental memorandum of law to address the issue of abstention. Defendants filed such memorandum September 27, 2001 and plaintiff filed his responsive memorandum October 9, 2001 Presently before this Court are plaintiff's motion for a preliminary injunction and defendants' request that this Court abstain from this case.
Prior to June 30, 1999, DR 2-105(b) stated that
"A lawyer who is certified as a specialist in a particular area of law or law practice by the authority having jurisdiction under the laws of this state over the subject of specialization by law may hold himself or herself out as a specialist, but only in accordance with the rules proscribed by that authority"
No rules regarding specialization were proscribed however. Zimmerman v. Office of Grievance Committees, 438 N.Y.S.2d 400 (App.Div. 4th Dep't 1981). On October 25, 1995 plaintiff was awarded a certificate in "Civil Trial Advocacy" by the National Board of Trial Advocacy, a private organization certified by the American Bar Association. Plaintiff thereafter began to refer to himself as a "Board Certified Civil Trial Specialist" in his advertisements. On August 6, 1996, the Grievance Committee wrote to plaintiff regarding his use of the term "Board Certified Civil Trial Specialist" on his letterhead — Hayes Aug. 24, 2001 Aff. 51, Ex. F — and on November 19, 1996 wrote to him regarding his use of the terms "Board Certified Civil Trial Specialist" and "Call Us When Your Personal Injury Case Requires A Specialist" in his advertisement in the 1996-1997 Talking Phone Book, taking the position that the use of such terms was inconsistent with DR 1-205(b). Hayes Aug. 24, 2001 Aff. ¶ 54, Ex. H. In response to a request by the Grievance Committee, plaintiff agreed to include the name of the certifying organization — i.e., the National Board of Trial .Advocacy on hZ5 letterhead and in future telephone directory advertisements thereby resolving the dispute over his use of the above terms. Hayes Aug. 24, 2001 Aff. ¶¶ 52-57, Exs. H-J. Plaintiff thereafter referred to himself as a "Board Certified Civil Trial Specialist/National Board of Trial Advocacy." Hayes Aug. 24, 2001 Aff. ¶ 58.
On June 30, 1999 DR 2-105(c)(1) went into effect, superseding the former DR 2-105(b). DR 2-105(c)(1) states that "[a] lawyer may state that the lawyer has been recognized or certified as a specialist only as follows:
"A lawyer who is certified as a specialist in a particular area of law or law practice by a private organization approved for that purpose by the American Bar Association may state the fact of certification if, in conjunction therewith, the certifying organization is identified and the following statement is prominently made: "The [name of the private certifying organization] is not affiliated with any governmental authority. Certification is not a requirement for the practice of law in the State of New York and does not necessarily indicate greater competence than other attorneys experienced in this field of law." DR 1-205(c)(1).
On November 17, 1999 the Grievance Committee wrote to plaintiff regarding his billboard near the end of the westbound Kensington Expressway. Scarsella Sep. 21, 2001 Aff. Ex. 1. Such billboard referred to plaintiff as a "civil trial specialist" and included the required disclaimer; however, the Grievance Committee felt that the disclaimer was in such small print that it could not be viewed by passing motorists and therefore requested plaintiff's response regarding whether the disclaimer was prominently-made as required by DR 1-205(c)(1). On November 30, 1999 plaintiff responded to the Grievance Committee, stating that disclaimers on billboards which advertised tobacco only had to be five inches high and in an effort to comply with the prominently-made requirement, he had directed that six inch letters be used for the disclaimer, but that he was willing to work with the Grievance Committee to resolve the issue. Hayes Aug. 24, 2001 Aff. Ex. K. On December 14, 1999 the Grievance Committee wrote to plaintiff stating that it was closing the investigation as to plaintiff's billboard, but suggested that he reconsider the size of his disclaimer and contact the Committee on Professional Ethics of the New York State Bar Association for an advisory opinion on that issue. Scarselia Sep. 21, 2001 Aff. Ex. 3.
On May 11, 2000 the Grievance Committee re-opened its investigation into plaintiff's billboard advertising based upon another of plaintiff's billboards on the eastbound lane of Route 5 heading toward Buffalo, the disclaimer on which the Grievance Committee believed to be unreadable by passing motorists. Scarsella Sep. 21, 2001 Aff. Ex. 4. Plaintiff responded to the Grievance Committee May 17, 2000 stating that he had directed his advertiser to remove the billboard on Route 5 and that he had contracted to have new billboards made wherein the disclaimer was "very large, in bold black type and on a white background." Scarsella Sep. 21, 2001 Aff. Ex. 5. The Grievance Committee responded May 19, 2000 stating that it was closing the investigation into plaintiff's billboard on Route 5 due to his representation that such would be removed and that new billboards were being designed. Scarsella Sep. 21, 2001 Arf. Ex. 6. However, the Grievance Committee also stated that it was opening another investigation, File #00.8210, based upon plaintiff's letterhead, wherein plaintiff identified himself as a "Board Certified Civil Trial Advocate National Board of Trial Advocacy" and did not include the required disclaimer. Ibid. Thereafter numerous letters were exchanged between the Grievance Committee, plaintiff and his attorneys, Barry Nelson Covert, Esq. and Michael S. Taheri, Esq., none of which made any progress in resolving the dispute. The Grievance Committee last stated to plaintiff in a June 25, 2001 letter that, if he "refuses to include the required disclaimer with the current designation on his letterhead, we will have no alternative but to request that he formally appear before the Committee with the recommendation of disciplinary action byway of a Letter of Admonition or formal proceedings in the Appellate Division." Scarsella Sep. 21, 2001 Aff. Ex. 16. Plaintiff's response was requested by July 13, 2001, which deadline was ultimately extended to August 3, 2001. Ibid. Plaintiff never filed a response, but instead commenced the present action. File #00.8210 regarding plaintiff's use of the term "Board Certified Civil Trial Advocate National Board of Trial Advocacy" on his letterhead without the required disclaimer remains open and pending before the Grievance Committee.
Defendants have requested that this Court abstain from considering this case pursuant to Younger v. Harris, 401 U.S. 37 (1971), and this Court must first address such issue because, when Younger abstention is applicable, abstention is mandatory. Schlagler v. Phi11ips, 166 F.3d 439, 441 (2d Cir. 1999).
" Younger v. Harris, supra, and its progeny espouse a strong federal policy against federal-court interference with pending state judicial proceedings absent extraordinary circumstances. * * * The notion of comity includes a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways. Minimal respect for the state processes, of course, precludes any presumption that the state courts will not safeguard federal constitutional rights."
"The policies underlying Younger are fully applicable to noncriminal judicial proceedings when important state interests are involved. The importance of the state interest may be demonstrated by the fact that the noncriminal proceedings bear a close relationship to proceedings criminal in nature * * *. Proceedings necessary for the vindication of important state policies or for the functioning of the state judicial system also evidence the state's substantial interest in the litigation. Where vital state interests are involved, a federal court should abstain unless state law clearly bars the interposition of the constitutional claims. The pertinent inquiry is whether the state proceedings afford an adequate opportunity to raise the constitutional claims." Middlesex County Ethics Comm. v. Garden State Bar Assn., 457 U.S. 423, 431-432 (1982) (emphasis in original).
Internal citations and punctuation omitted.
The State of New York has an undeniably important interest in ensuring that the conduct of attorneys licensed by it conforms to the applicable ethical standards promulgated by the Appellate Divisions of the Supreme Court and such interest is evidenced by the fact that it was the Grievance Committee — a creation of the Supreme Court, Appellate Division, Fourth Department, 22 N.Y.C.R.R. § 1022.19(a), which initiated the charges against plaintiff and the Grievance Committee which plaintiff seeks to enjoin in this action. Id. at 434-435. Accordingly, Younger abstention is applicable to attorney disciplinary proceedings, which are judicial in nature and are comparable to a criminal proceeding — including those still in the investigatory stages before a grievance committee prior to the filing of formal charges — provided that plaintiff has an adequate opportunity to interpose his constitutional challenge as a defense in such proceedings. Middlesex, at 433-435; Mason v. Departmental Disciplinary Committee, 894 F.2d 3512, 514-515 (2d Cir.), cert. denied, 497 U.S. 1025 (1990); Anonymous v. Association of the Bar of the City of New York, 515 F.2d 427, 433 (2d Cir.), cert. denied, 423 U.S. 863 (1975); Erdmann v. Stevens, 458 F.2d 1205, 1208-1209 (2d Cir.), cert. denied, 409 U.S. 889 (1972).
Under New York law all disciplinary actions against an attorney by a grievance committee are subject to judicial review and an attorney facing disciplinary charges has an adequate opportunity to defend against such on constitutional grounds in the state fora. Mason, at 515-516. New York State courts are competent to consider and determine federal constitutional questions and are no less bound to apply Supreme Court precedent than is a federal court and, should the state courts render a decision in contravention of established Supreme Court precedent, such may be remedied by application to the Supreme Court for a writ of certiorari. Anonymous, at 434-435; Erdmann, at 1211.
Plaintiff contends that he does not have an adequate opportunity to challenge the constitutionality of DR 1-205(c)(1), however, because to do so would have to subject himself to disciplinary action. Plaintiff states that, if this Court abstains from this case, rather than subjecting himself to disciplinary action he would instead comply with the mandates of DR 1-205(c)(1) by including the required disclaimer in his advertising in which case he assumes that the pending grievance against him would be dismissed. Plaintiff states that he would then re-file the instant action and that abstention would not apply because there would no longer be a pending state proceeding. Hayes Oct. 9, 2001 Aff. ¶¶ 6, 10-111. Such argument is without merit, however, because by allegedly violating DR 1-205(c)(1) by not including the required disclaimer, plaintiff has already subjected himself to disciplinary action. Pursuant to section 90(2) of the N.Y Judiciary Law, "[t]he supreme court shall have power and control over attorneys and counsellors-at-law * * * and the appellate division of the supreme court in each department is authorized to censure, suspend from practice or remove from office any attorney and counsellor-at-law admitted to practice who is guilty of professional misconduct * * *." "A violation of any rule of the Disciplinary Rules * * * shall constitute professional misconduct within the meaning of Judiciary Law, section 90(2)." 22 N.Y.C.R.R. § 1022.17. While plaintiff asserts that, if this Court abstains from deciding this case and he thereafter begins to comply with the requirements of DR 1-205(c)(1) by including the required disclaimer in his advertisements, the Grievance Committee would dismiss the charge against him, such is not necessarily true, especially in light of plaintiff's admission that he only intends to comply with DR 1-205(c)(1) until the Grievance Committee drops the charge against him — it should do so — in which case he would then re-file the present case. Furthermore, even if such was guaranteed to happen, this Court can not now render an advisory opinion on the constitutionality vel non of DR 1-205(c)(1). As recognized by the Second Circuit Court of Appeals,
"[t]he relationship between a court and those practicing before it is a delicate one. It would appear axiomatic that the effective functioning of any court depends upon its ability to command respect not only from those licensed to practice before it but also from the public at large. It requires little vision to appreciate that if a state court were subject to the supervisory intervention of a federal overseer at the threshold of the court's initiation of a disciplinary proceeding against its own officer, the state judiciary might suffer an unfair and unnecessary blow to its integrity and effectiveness." Erdmann, at 1210.
Accordingly, it is hereby ORDERED that defendants' request that this Court abstain from this case is granted, that plaintiff's motion for a preliminary injunction is denied, that plaintiff's Complaint is dismissed and that this case shall be closed in this Court.