escrow by opposing counsel. Id. at 447. The court held that while "the charge in the court's formal opinion was not a model of clarity. . . . the fact remains that [claimant] was charged with misappropriating the funds and had adequate notice of that charge." Id. at 448. Consequently, the court finds that whether respondent was charged with making an "inaccurate" argument or a "specious" argument, he had adequate notice that he was being accused of improperly asserting a res judicata argument with the purpose of misleading and deceiving the court and opposing counsel in violatio of Disciplinary Rule 1-102(A)(4).
B. Opportunity to be Heard
Respondent next argues that the court denied him an opportunity to be heard under Local Rule 83.4(d)(A) because the Third Department's Memorandum and Order does not address the constitutional claims raised by respondent. Respondent mistakenly characterizes the opportunity to be heard as a substantive protection rather than a procedural one. The mere fact that respondent was afforded the opportunity to present his constitutional arguments to the Third Department satisfies this procedural protection. See e.g., In re Evans, 834 F.2d 90, 91 (4th Cir. 1987).
Furthermore, by arguing that he was denied the opportunity to be heard because the Third Department found his constitutional claims unworthy of mention, see Respondent's Memorandum of Law in Support of Show Cause Application at 7, respondent is improperly asking for substantive de novo review. Local Rule 83.4(d) clearly states that reciprocal discipline will be imposed "unless an examination of the record resulting in the discipline discloses" the listed deficiencies (emphasis added). In addition, federal courts have consistently held that the reviewing court need only examine the record of the lower court. See e.g., Greer's, 843 F.2d 443; Evans, 834 F.2d at 91; Matter of Sassower, 700 F. Supp. 100 (E.D.N.Y. 1988). Thus this argument is without merit.
C. Infirmity of Proof
Respondent further argues that under Local Rule 83.4(d)(B) there was an infirmity of proof in the state's ruling. Respondent contends that the factual evidence does not support the Referee's conclusion that respondent's res judicata argument was "specious" because he specifically limited his argument to the issue of physical abuse on which the Family Court Judge ruled. Second, respondent contends that there was no evidence to support the finding that he had the required intent to mislead. Third, respondent maintains that because the parties acted as if there was an agreement to continue discovery, respondent's affidavit swearing that there was an agreement to continue discovery was not misleading or deceiving.
First, the court notes that in all three instances the respondent is improperly asking this court for de novo review. Rather, this court is limited to a review of the record to determine if sufficient evidence was presented to support the Referee's decision.
In the present case, the Referee's decision, dated April 6, 1994, referred to respondent's specific testimony on the res judicata issue at two separate hearings. See Report of Referee at 3. Furthermore, in finding that respondent intended to mislead, the Referee relied on respondent's failure to timely supply the prior Family Court decision to Judge Fischer, which decision would have revealed that it had no res judicata effect. Id. In addition, there was testimony that respondent's statement in a sworn affidavit was not true and that he intentionally lied to opposing counsel. Id. at 5, 6. Finally, the record reveals that the Referee found respondent's affidavit misleading because it was untrue and inappropriate under the circumstances. Id. at 5.
Thus, this court finds that the record contains evidence that would support the Referee's conclusion that respondent Benjamin attempted to mislead and deceive the court and opposing counsel.
D. Grave Injustice
Respondent maintains that the adoption of reciprocal discipline pursuant to Local Rule 83.4(d)(C) would result in grave injustice. Respondent argues that his conduct did not rise to the level of fraudulent or deceptive conduct contemplated by DR 102(A)(4). However, by challenging the Third Department's findings as to his conduct, respondent is once again improperly seeking de novo review.
The proper review is whether adoption of the discipline imposed, in this instance public censure, would result in grave injustice. In In re Sanchez-Ferreri, the district court found that there would be no grave injustice by adopting the state's disbarment of the claimant because "petitioner's unethical conduct [was] sufficiently grave as to deserve a revision of his status as a member of this bar. The unethical conduct proven in this case has consistently resulted in disbarment." 620 F. Supp. 951, 953 (D.C. Puerto Rico 1985).
Courts have consistently found that attempts to mislead and deceive the court or opposing counsel are sufficiently serious to warrant public censure, and, as pointed out by respondent's memorandum, even disbarment. See e.g., Matter of Tassio, 174 A.D.2d 166, 579 N.Y.S.2d 105 (2d Dep't 1992) (public censure of defense attorney who predated client's affidavit and used affidavit to mislead district attorney); Matter of LaFountain, 738 P.2d 472 (Mont. 1987) (public censure of attorney who falsely represented to clerk of trial court that he had been successful on appeal in order to obtain default judgment); Matter of Hansen, 877 P.2d 802 (Ariz. 1994) (public censure of attorney who mislead court and opposing counsel by telling court a witness was not available when the attorney had previously told the witness to leave).
Consequently, in light of the Third Department's finding that respondent intentionally misled and deceived the court and opposing counsel, together with persuasive authority that this unethical conduct should result in public censure, the court finds that respondent has not sufficiently shown why imposing reciprocal discipline pursuant to Local Rule 83.4(d) would result in grave injustice.
Thus, the court finds that respondent has failed to show good cause as to why he should not be publicly censured by this court.
Accordingly, it is hereby
ORDERED that respondent's application for an order to show cause is DENIED.
IT IS SO ORDERED.
Dated: December 5, 1994
Syracuse, New York
FREDERICK J. SCULLIN, JR.
UNITED STATES DISTRICT JUDGE
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