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In re Klarer

August 25, 2009

IN THE MATTER OF FREDRICK KLARER, AN ATTORNEY AND COUNSELOR-AT-LAW.
GRIEVANCE COMMITTEE FOR THE TENTH JUDICIAL DISTRICT, PETITIONER;
FREDRICK KLARER, RESPONDENT. (ATTORNEY REGISTRATION NO. 1968981)



DISCIPLINARY proceeding instituted by the Grievance Committee for the Tenth Judicial District. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on January 30, 1985. By decision and order on application dated December 6, 2007, the Grievance Committee was authorized to institute and prosecute a disciplinary proceeding against the respondent based upon the acts of professional misconduct set forth in the verified petition dated June 27, 2007, the respondent was barred from relitigating any of the factual issues in the proceeding based on the doctrine of collateral estoppel, and the matter was referred to the Honorable Stanley Harwood, as Special Referee to hear and report solely on the issue of mitigation.

Per curiam.

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.

A. GAIL PRUDENTI, P.J., WILLIAM F. MASTRO, REINALDO E. RIVERA, ROBERT A. SPOLZINO and PETER B. SKELOS, JJ.

OPINION & ORDER

The Grievance Committee for the Tenth Judicial District (hereinafter the Grievance Committee) served the respondent with a petition dated June 27, 2007, containing six charges of professional misconduct. After a pre-trial conference on January 23, 2008, and a hearing on July 30, 2008, limited to the issue of mitigation, the Special Referee sustained all six charges. The Grievance Committee moves to confirm the Special Referee's report and to impose such discipline upon the respondent as the Court deems just and proper. The respondent's counsel has submitted an affirmation in response to the Grievance Committee's motion to confirm which also seeks to confirm the Special Referee's report and to remit this matter to the Grievance Committee for the Tenth Judicial District for the imposition of a private sanction.

Charge one alleges that the respondent knowingly made false statements of fact by: (a) failing to advise the Family Court, New York County, that the relief he was seeking had previously been denied by both the Supreme Court, New York County, and the Appellate Division, First Department, and (b) falsely asserting before the Supreme Court, New York County, in an affirmation in opposition to a motion for the imposition of sanctions, that he had verbally informed the Family Court, New York County, of the prior applications and determinations, in violation of Code of Professional Responsibility DR 7-102(a)(5) (22 NYCRR 1200.33[a][5]).

The respondent represented Patricia Magrath, the maternal aunt of an infant referred to as SER. In or about June 2004, the respondent filed a writ of habeas corpus on behalf of his client to enjoin the legal custodian of SER from removing the child from the State of New York pending a hearing on the writ. On June 14, 2004, the Honorable Judith J. Gische, Supreme Court, New York County, heard from the respondent, the legal custodian, Soo Song, and the attorney assigned to represent SER with respect to the writ.

Justice Gische denied the writ, making findings on the record, and issued a written order dated June 14, 2004, finding no legal basis to prohibit the child from summer travel to Korea with the legal custodian. The court found no basis for the respondent's belief that SER would not be returning to the United States.

The respondent filed a motion for interim relief with the Appellate Division, First Department, dated June 23, 2004, seeking to stay the removal of SER from the jurisdiction of the court until a determination of the appeal was rendered. The attorney for the child opposed that motion. The Appellate Division, First Department, denied the application for interim relief. Immediately after receiving that order on June 24, 2004, the respondent filed an order to show cause with the Family Court, New York County, seeking an order prohibiting the removal of SER from New York until further order of the Family Court. Along with that order to show cause, the respondent submitted a petition for custody, verified June 23, 2004. In those papers, the respondent failed to disclose the court orders denying the injunctive relief sought and authorizing SER to travel. Nor did the respondent disclose the denial by the Appellate Division, First Department, of a stay of the removal of the infant from New York.

On June 24, 2004, the matter was heard before Family Court Judge Gloria Sosa-Lintner. The attorney for the child had not been served with the order to show cause and was not present during the Family Court proceedings. During the course of those proceedings, the respondent failed to inform the Family Court that the Supreme Court, New York County, and the Appellate Division, First Department, had previously denied the same relief as that being sought in the Family Court. During the Family Court proceedings, the respondent made comments to the effect that Justice Gische was not interested in the writ, was not very amenable to his claim that it was within the child's best interests to remain in this country, and had directed him to go to Family Court. The Family Court signed the order to show cause on June 24, 2004, granting the respondent's application for an order prohibiting SER from being removed from New York State until further order of that court.

The attorney for the child submitted an order to show cause dated June 27, 2004, to the Honorable Judith J. Gische in the Supreme Court, New York County, seeking a stay of the Family Court order of June 24, 2004, and permitting SER to travel as previously ordered by the Supreme Court, New York County, and the Appellate Division, First Department. The attorney for the child further sought the imposition of sanctions against the respondent and his client pursuant to 22 NYCRR part 120, alleging that the fees of the attorney for the child should be assessed as a sanction due to the respondent's failure to advise the Family Court of the previous orders. Justice Gische granted so much of the application of the attorney for the child as sought to stay the Family Court proceeding and to permit SER to travel. The request for the imposition of sanctions was not addressed at that time.

The respondent opposed so much of the order to show cause of the attorney for the child as sought sanctions claiming that he had fully explained the history of the writ of habeas corpus and its subsequent denial, as well as the Appellate Division's denial of his request for interim relief.

In a decision and order dated August 13, 2004, Judge Gische ruled that the respondent and his client had engaged in sanctionable conduct by commencing the Family Court action. Since the relief sought had already been denied, the Family Court action was without basis in law and was precluded by basic rules of res judicata and collateral estoppel. Justice Gische further ruled that even merely making the application warranted the imposition of sanctions. In addition, the ...


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