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Warren Redlich; Rita Redlich v. Mark S. Ochs

February 24, 2011

WARREN REDLICH; RITA REDLICH; AND DAVID R. BRADLEY, PLAINTIFFS,
v.
MARK S. OCHS, IN HIS OFFICIAL CAPACITY AS CHIEF ATTORNEY FOR THE COMMITTEE ON PROFESSIONAL STANDARDS FOR THE APP. DIV. OF THE NY SUPREME CT. 3RD DEPT.; JAMES L. CHIVERS, IN HIS OFFICIAL CAPACITY AS CHAIRPERSON FOR THE COMM. ON PROFESSIONAL STANDARDS FOR THE APP. DIV. OF THE NY SUPREME CT., THIRD DEPT.; ANTHONY V. CARDONA, PRESIDING JUSTICE OF THE APPELLATE DIVISION, THIRD DEPARTMENT; AND MICHAEL PHILIP, JR., DEPUTY CHIEF ATTORNEY FOR THE COMMITTEE ON PROFESSIONAL STANDARDS, DEFENDANTS.



The opinion of the court was delivered by: Gary L. Sharpe District Court Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Plaintiffs Warren Redlich, Rita Redlich (Mrs. Redlich), and David R. Bradley commenced this action under 42 U.S.C. § 1983, alleging violations of their federal constitutional rights in connection with Warren Redlich being disciplined pursuant to the New York Disciplinary Rules of the Lawyer's Code of Professional Responsibility.*fn1 (Dkt. Nos. 1, 10.) Pending are defendants' motion to dismiss plaintiffs' amended complaint pursuant to FED. R. CIV. P. 12(b)(1) and (6), (Dkt. No. 12), and plaintiffs' cross-motion to amend their amended complaint pursuant to FED. R. CIV. P. 15, (Dkt. No. 15). For the reasons that follow, defendants' motion is granted, and plaintiffs' cross-motion is denied.

II. Background

Plaintiff Warren Redlich is an attorney licensed to practice law in New York State. (Am. Compl. ¶ 3, Dkt. No. 10.) Redlich is the founder of the Redlich Law Firm, which has an office in Albany, New York, and employs three attorneys who represent clients in personal injury, traffic tickets, DWI, and other criminal charges. (Id. at ¶ 4.) The Redlich Law Firm communicates its services to the public through the website http://www.redlichlaw.com. (Id.)

In January 2008, Redlich was sworn in as a Town Board Member in the Town of Guilderland, New York. (Id. at ¶ 15.) In February 2008, Donald Csaposs, a Guilderland Democratic Appointee, wrote a letter to the Committee on Professional Standards for the Third Department,*fn2 alleging that Redlich's status as a Town Board member should disqualify him from appearing in the Guilderland Town Court. (Id. at ¶ 17.) Shortly thereafter, Judge Thomas Breslin, Supervising Judge of the Criminal Court for the Third Judicial District of New York, received letters from the Albany County District Attorney's Office and Guilderland Town Attorney Richard J. Sherwood, which also expressed the opinion that Redlich should be disqualified from appearing in Guilderland Town Court in light of his role as a Town Board member. (See id. at ¶¶ 16-20.) On April 11, in response to these letters, Judge Breslin wrote to Judge Philip Caponera, Chairman of the Committee on Professional Standards, questioning whether it was appropriate for Redlich to appear in Guilderland Town Court given his new role with the Guilderland Town Board. (Id. at ¶¶ 21, 22; Pls. Ex. 4, Dkt. No. 1.) On April 17, aware of this inquiry, Redlich also wrote to Judge Caponera, stating there was no conflict with the Redlich Law Firm representing clients in the Town of Guilderland. (Am. Compl. ¶ 23, Dkt. No. 10.) In response, Michael Philip, Jr., Deputy Chief Attorney for the Committee, sent a letter to Redlich, calling his attention to a New York State Bar Ethics Opinion relating to conflicts of interest and requesting that Redlich provide a written position regarding the opinion within ten days.

(Id. at ¶ 24; Pls. Ex. 6, Dkt. No. 1.) Redlich responded to Philip's letter on May 28, 2008, communicating his position that the opinion did not disqualify the members of his firm from appearing in Guilderland Town Court. (Am. Compl. ¶ 25, Dkt. No. 10; Pls. Ex. 7, Dkt. No. 1.)

In the midst of investigating the alleged conflict of interest, the Committee initiated a "Chief Attorney's Inquiry" against Redlich pursuant to 22 N.Y. COMP. CODES R. & REGS. § 806.4(a).*fn3 (Am. Compl. ¶ 27, Dkt. No.

10.) The Inquiry was based on the suspicion that the Redlich Law Firm's website contained advertising that did not comply with the relevant provisions of the Code of Professional Responsibility. (Id. at¶ 28; Pls. Ex. 9, Dkt. No. 1.) The Committee notified Redlich of the Inquiry and requested that he submit a written response, which Redlich did on December 3, 2008. (Am. Compl. ¶ 29, Dkt. No. 10; Pls. Ex. 10, Dkt. No. 1.)

On February 5, 2009, after completing its investigation of the alleged conflict of interest and website concerns, the Committee issued a "letter of caution,"*fn4 finding that the Redlich Law Firm should be precluded from taking on representation of clients appearing before the Guilderland Town Court, and that the firm's website failed to comply with certain disciplinary rules. (Am. Compl.¶ 32, Dkt. No. 10; Pls. Ex. 13, Dkt. No. 1.) With respect to the firm's website advertising, the Committee found that Redlich had failed in a number of instances to provide the specific disclaimers required under the rules, and that the website contained representations that were impermissibly misleading, oversimplifications, or exaggerations. (Id.)

The next day, Redlich sought the Committee's reconsideration of the letter of caution, which was granted on February 12. (Am. Compl. ¶¶ 33, 34, Dkt. No. 10.) As part of the reconsideration process, Redlich was permitted to submit his objections in writing and to personally appear before the Executive Committee of the Committee on Professional Standards to argue his case. (Id. at ¶¶ 33-38; Pls. Exs. 14-18, Dkt. No. 1.) After Redlich submitted his objections, which sought further clarification with respect to his firm's website advertising deficiencies, defendant Philip provided Redlich, on March 12, with a list of the statements the Committee deemed to be in violation of the disciplinary rules. (Am. Compl. at ¶¶ 35-36, Dkt. No. 10.) Ultimately, after submitting an additional letter in support of the website and personally appearing before the Executive Committee, Redlich received an amended letter of caution on June 1, 2009. (Id. at ¶¶ 37-40.)

Not satisfied with the amended letter, Redlich sought further review by the Appellate Division, Third Department, by motion dated June 24, 2009. (Id. at ¶ 43.) In support of that motion, Redlich provided an affidavit, with supporting exhibits, contending that the advertising statements cited by the Committee did not violate the relevant disciplinary rules, and that the Committee erred with respect to their conflict of interest findings. (Id. at ¶ 41; Pls. Ex. 21, Dkt. No. 1; Philip Aff. ¶ 9, Ex. I, Dkt. No. 12:3.) In response, the Committee submitted an affidavit in opposition, along with attached exhibits. (See Philip Aff. ¶ 10, Ex. J, Dkt. No. 12:3.)

On October 1, the Appellate Division granted Redlich's motion in part, vacating the June 1 letter of caution, but directing the Committee to issue a revised letter of caution with the specific text annexed to the decision. (Am. Compl. ¶ 42, Dkt. No. 10; Philip Aff. ¶ 11, Ex. K, Dkt. No. 12:3.) The letter annexed to the Appellate Division's Order is identical to the June 1 letter except that it adds: (1) a sentence clarifying the specific disciplinary rules and New York State Ethics Opinions supporting the Committee's conflict findings; and (2) a reference to the examples of statements that were misleading, oversimplifications, or exaggerations as set forth in Philip's March 12 letter to Redlich. (Philip Aff. ¶ 11, Ex. K, Dkt. No. 12:3.)

In accordance with the court's order, the revised letter of caution was issued to Redlich on October 14. (Am. Compl. ¶ 43, Dkt. No. 10; Pls. Ex. 23, Dkt. No. 1.) The letter stated that Redlich and the members of his firm were engaged in conflicts of interest. (See Pls. Ex. 23, Dkt. No. 1.) Specifically, it advised him that neither he nor the members of his firm could represent clients who had been charged with traffic violations or other criminal offenses before the Guilderland Town Court because of Redlich's role as a member of the Town Board, which carried with it budgetary authority over the Town Court, the Guilderland Police Department, and the Town Attorney's Office. (See id.) Such representation was found to be a violation of Disciplinary Rule (DR) 1-102(a)(5) and New York State Bar Association (NYSBA) Ethics Opinions #692 and #798.*fn5 (See id.) The letter further stated that the Redlich Law Firm's website failed to comply with the relevant disciplinary rules, finding that it contained statements not accompanied by the disclaimer "[p]rior results do not guarantee a similar outcome," as mandated by DR 1-101(e)(3), and that certain other statements were misleading, oversimplifications, or exaggerations, in violation of DR 2-101(a)(1).*fn6 (Id.)

With respect to these latter statements, the letter, as noted above, referred to the examples set forth in Philip's March 12 letter to Redlich. (Id.)

Based on these determinations, Redlich and plaintiffs David R. Bradley and Mrs. Redlich commenced this action on May 14, 2010, and filed an amended complaint on June 17, 2010. (Dkt. Nos. 1, 10.) Redlich claims that the Committee's decision with respect to his firm's website advertising violated his First Amendment right to engage in truthful commercial speech, that the proceedings leading to the Committee's decision were procedurally deficient under the Fourteenth Amendment, and that the disciplinary rules underpinning the Committee's decision are unconstitutionally vague. (See Am. Compl. ¶¶ 45-61, 91-95, 97, Dkt. No. 10.) Plaintiffs Mrs. Redlich and Bradley*fn7 claim that the Committee's decision infringed on their Sixth Amendment rights insofar as they (and 7.1(a)(1). others similarly situated) cannot be represented by the Redlich Law Firm in certain proceedings before the Guilderland Town Court as long as ...


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