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In re Marcus

June 16, 2009


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.


Application by the Grievance Committee for the Ninth Judicial District pursuant to 22 NYCRR 691.3 to impose discipline on the respondent based upon disciplinary action taken him by the Supreme Court of California. By decision and order of this Court dated June 10, 2008, the motion of the Grievance Committee for the Ninth Judicial District to impose reciprocal discipline upon the respondent based on disciplinary action taken him in the State of California was held in abeyance pending a hearing, upon the respondent's request, and the issues raised were referred to Norman B. Lichtenstein, as Special Referee to hear and report. The respondent was admitted to the Bar of the State of New York at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on December 16, 1992, under the name Richard Adam Marcus.

By order of the Supreme Court of the State of California filed November 30, 2007, the respondent was suspended from the practice of law for a period of three years, the execution of the suspension was stayed, and the respondent was placed on probation for three years on condition that he would be suspended for nine months. Although the aforementioned order addressed only the imposition of discipline, the order incorporated by reference the findings and conclusions of the Review Department of the California State Bar Court set forth in an order filed August 9, 2007. As disclosed in the August 9, 2007, order, the respondent was suspended based upon a finding that he engaged in an act involving moral turpitude, dishonesty, or corruption in violation of section 6101 of the California Business and Professional Code by: (1) "arranging a sham marriage with the intent of emancipating a minor in order to circumvent a court order, while simultaneously prosecuting an appeal seeking to overturn the same order," (2) failing to inform either the California Superior Court or the California Court of Appeals of the material information consisting of the minor's marriage, and (3) continuing to prosecute the appeal despite knowing of the minor's intent to marry and of the subsequent marriage.

Basic Underlying Facts

The discipline imposed by the State of California emanates from the respondent's representation in a custody dispute concerning two young girls, Courtney and Melissa, between their father and maternal grandparents after the death of their mother in 1997. At that time, Melissa, then 11 years of age, and Courtney, then 10 years of age, began living with their maternal grandparents, the Weisses, in Los Angeles. The father relocated to Placerville, California, and the children remained with their grandparents while they finished their school year.

On July 23, 1999, the grandparents, by their attorney Melodye S. Hannes, filed a petition for guardianship of the minors. In August 1999, the grandparents were appointed temporary guardians. Courtney decided to live with her father, and the grandparent's guardianship was terminated as to her. However, as to Melissa, the temporary appointment was to remain in place until the trial on the petition for guardianship.

The respondent became co-counsel of record with Hannes in April 2001. Following a three-day trial, the trial judge issued an oral judgment denying the petition for guardianship, but issued a 30-day stay of the order returning Melissa to her father to allow her to finish school and to permit the grandparents to appeal the judgment.

The respondent and Hannes explored the available options to avoid returning Melissa to her father, which were: (1) speak with the father, (2) await the outcome of an application for a stay pending appeal, and (3) emancipate Melissa, then 16 years old, by having her marry her boyfriend. The emancipation option was considered a "backup" position to an appeal. If the appeal was successful, the marriage would be annulled. If the appeal was unsuccessful, Melissa could use the marriage to avoid complying with the order.

The respondent researched whether a temporary guardian could consent to a minor's marriage in California. The respondent and Hannes discussed the possibility of the Bahamas as a jurisdiction in which Melissa could marry with the Weisses' consent. Hannes concluded after her research that a temporary guardian could consent to the marriage of a minor in the Bahamas. The respondent believed that they had a non-frivolous argument that the grandparents' temporary guardianship remained in place even after the petition for guardianship was denied because of the trial judge's 30-day stay.

An issue arose as to whether Melissa should be presented with the emancipation option. After calling the State Bar Ethics Hotline for guidance, the respondent believed that he had an obligation to present the option to Melissa.

On June 12, 2001, the trial court issued a written judgment denying the petition for guardianship, directed that Melissa be returned "forthwith" to the father, and granted the grandparents a 30--day stay of the directive to return Melissa to the custody of her father. The trial court specifically found, inter alia, that it was in Melissa's best interest to be returned to her father's custody.

Hannes and the respondent agreed that Hannes would present the emancipation option to Melissa. On or about June 25, 2001, Melissa decided to marry her boyfriend. Melissa asked Hannes to accompany her to the Bahamas. The respondent agreed that Hannes should accompany Melissa to ensure that all the proper procedures were followed. Hannes prepared the necessary papers, purchased the tickets and flew to the Bahamas with Melissa on June 28, 2001.

On June 26, 2001, the respondent moved in the trial court for a stay of enforcement of the judgment. On June 27, 2001, he appealed the custody decision, and on June 29, 2001, filed a petition for a writ of supersedeas in the California Court of Appeals to stay so much of the judgment as directed that Melissa be returned to her father. ...

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