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Leon R. Koziol, Individually and As Natural Parent of Child "A" and Child v. Karen Peters

October 11, 2012

LEON R. KOZIOL, INDIVIDUALLY AND AS NATURAL PARENT OF CHILD "A" AND CHILD "B," PLAINTIFF,
v.
KAREN PETERS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge

DECISION & ORDER

I. INTRODUCTION

Plaintiff Leon R. Koziol, an attorney suspended from the practice of law in New York, commenced this action pro se on May 18, 2012. In a rambling, disjointed, and nearly incomprehensible complaint, Plaintiff asserts claims against the various defendants alleging violations of his constitutional rights. Plaintiff's action seemingly arises from his custody and child support proceedings in New York state court, his subsequent suspension from the practice of law, and his current inability to cure his suspension. See generally, compl.

Presently before the Court are two motions to dismiss, and plaintiff's cross-motion for a preliminary injunction. The first motion to dismiss [dkt. # 10] is brought by the justices of the New York State Supreme Court, Appellate Division, Third Department*fn1 ("Third Department justices"), three members of the Third Department's Committee on Professional Standards*fn2 ("Committee"), and retired New York State Supreme Court Justice Michael Daley ("Judge Daley")(collectively "State Defendants"). See Dkt. # 10. The second motion is brought by the City of Utica ("the City"). See Dkt. # 12. The City seeks dismissal of the claims against it, monetary sanctions against plaintiff pursuant to Federal Rule of Civil Procedure 11(b), and an order enjoining plaintiff from filing further vexatious litigation. Plaintiff's cross-motion seeks a "preliminary injunction enjoining the enforcement of an indefinite license suspension order issued on September 23, 2010, having a one-year term, removal of a letter directive which operates as a prior restraint upon free speech, enjoining the conduct of disciplinary defendants during the pendency of this action and an order denying motions on the pleadings filed by the various defendants." Dkt. # 16. Both sets of defendants have filed reply/opposition papers to plaintiff's cross motion. See dkt. # 18; dkt. # 19.

II. BACKGROUND

In August 2008 and May 2009, plaintiff, who maintained a practice of law in Utica, New York, was charged with multiple counts of professional misconduct in violation of various provisions of the former Code of Professional Responsibility. See In Re Koziol, 76 A.D.3d 1136, 1137-38, 907 N.Y.S.2d 697 (3d Dept. 2010), appeal dismissed, 15 N.Y. 3d 943, 940 N.E.2d 920 (N.Y. 2010), leave to appeal denied, 16 N.Y.3d 853, 947 N.E.2d 159 (2011) cert denied, 132 S. Ct. 455, 181 L. Ed. 2d 295 (U.S. 2011). Plaintiff denied material allegations of the petitions and the matters were referred for separate hearings by the New York State Supreme Court, Appellate Division, Fourth Department. Id. The hearings were held in 2009 and the Referees' Reports sustained the charges of the earlier petition in part and the charges of the later petition in full. Id. The Fourth Department's Attorney Grievance Committee, the petitioner in these disciplinary matters, moved to confirm both reports. Id. Plaintiff cross-moved to set aside both reports, to dismiss the petitions, and for other related relief. Id.

On February 5, 2010, the Fourth Department issued an order suspending Plaintiff from the practice of law in the State of New York for an indefinite period because plaintiff willfully violated a child support order issued by the Supreme Court of Oneida County on October 1, 2009. Id.*fn3 On April 28, 2010, the Fourth Department issued an order transferring the then-pending disciplinary matter to the Third Department for further disposition of the two petitions. Id.; see also Pl. ex. D.*fn4

On September 23, 2010, the Third Department found that plaintiff engaged in conduct involving dishonesty, fraud, deceit or misrepresentation with respect to five clients [] and in his responses to [the Committee on Professional Standards] . . . ; engaged in conduct prejudicial to the administration of justice with respect to one client [] and in his responses to [the Committee on Professional Standards] . . . ; failed to take steps to the extent reasonably practicable to avoid foreseeable prejudice to the rights of a client [] . . . ; entered into a business transaction with a client [] and failed to disclose the terms of the agreement in writing, failed to advise the client to seek independent counsel regarding the business transaction, and failed to obtain the client's consent in writing, after full disclosure, to the terms of the transaction and to respondent's inherent conflict of interest in the transaction . . . ; neglected the legal matters of three clients [] . . . ; knowingly made a misleading statement of fact to a client [] . . . ; and engaged in conduct which reflects adversely upon his fitness as a lawyer with respect to five clients [] and in his responses to [the Committee on Professional Standards] . . .

In Re Koziol, 76 A.D.3d at 1137-38

The Third Department determined that because plaintiff "ha[d] engaged in multiple instances of professional misconduct over a period of years," and because "[t]he record . . . raise[d] concerns about [plaintiff]'s continuing ability to discharge his professional obligations," he was suspended from the practice of law for "a period of one year, effective immediately, and until further order of this Court." Id. at 1138. The Third Department further ordered that for the period of suspension, respondent is commanded to desist and refrain from the practice of law in any form, either as principal or as agent, clerk or employee of another; and respondent is hereby forbidden to appear as an attorney or counselor-at-law before any court, judge, justice, board, commission or other public authority, or to give to another an opinion as to the law or its application, or any advice in relation thereto.

Id.

Plaintiff contends that his one-year suspension was completed as of September 23, 2011, compl. ¶ 49, and he thereafter initiated the reinstatement process but has been thwarted in that effort by the State defendants. Id. ¶ 57. As discussed below, the reinstatement process is presently on-going and subject to a continuing inquiry by the Third Department's Committee on Professional Standards. Id. ¶¶ 49, 57, 62, 76.

a. Claims against the State Defendants

In a rambling affidavit in support of his application for a preliminary injunction, plaintiff asserts that the Third Department justices' decision to suspend him from the practice of law, to continue such suspension, and the Committee's decision to investigate him for new violations of the applicable rules of conduct were taken in retaliation for plaintiff's on-going speech on matters related to parental rights and critical of New York courts' handling of child support and custody maters. In this regard, plaintiff points to a May 6, 2011 letter he received from an investigator with the Attorney Grievance Committee indicating that that office was opening a grievance file "based on the concern that, despite your current suspension, your website identifies you as a 'civil rights attorney/advocate.'" Pl. ex. D. The letter asks plaintiff for a written explanation "addressing our concerns that your representation of yourself as a civil rights attorney/advocate is in violation of the Court's orders of suspension." Plaintiff seemingly contends that the investigation was instituted not because he held himself out as an attorney but because of the content of his speech on his website and his advocacy for certain issues.*fn5

Plaintiff also received a Chief Attorney's Inquiry from the Committee dated April 13, 2012. This instructed plaintiff to answer, inter alia, whether he held himself out as an attorney at a civil rights conference held at the Hotel Utica on January 19, 2010; offered or solicited to add individuals as parties to his own parental rights lawsuit for a fee; and filed a number of frivolous claims in two actions dismissed on May 24, 2011 in the Northern District of New York.*fn6 Again, plaintiff contends that the investigation was intended to retaliate against him for the content of his speech and his advocacy for certain issues.

Plaintiff additionally cites to a May 16, 2012 letter he received from the Committee as an indication that the Committee is attempting to prevent his reinstatement to the practice of law. This letter indicates that a reply had not been received to the April 13, 2012 Chief Attorney's Inquiry, reminds plaintiff of his obligation to cooperate in an investigation by the Committee, and indicates that, if necessary, the Committee would obtain a subpoena to compel plaintiff's appearance for an examination in which case plaintiff would be required to reimburse the Committee for the stenographic cost of the examination. Pl. ex. C.

Judge Daley is a retired New York State Supreme Court Justice who presided over the 2009 domestic support proceeding from which plaintiff's original law license suspension arose. Compl. ¶¶ 21-31. Judge Daley was not formally involved in the Third Department's September 23, 2010 suspension order and is not formally involved in the on-going reinstatement process. Id.

Plaintiff alleges that the State Defendants violated his federal constitutional rights under the First, Fourth, Eighth, Ninth, Tenth and Fourteenth Amendments throughout the course of his ongoing disciplinary proceedings and orders of suspension of his license to practice law. See Compl. ¶¶ 72 -90 (causes of action 1 through 7). Plaintiff seeks, inter alia, to challenge as unconstitutional the Third Department's September 2010 order of suspension, and the on-going reinstatement process and inquiries by the Third Department's Committee on Professional Standards. See id.; Koziol Aff., ¶ 1; Pl. MOL in Sup. of Cross Mot., p. 1 ("[T]he operative facts before this court are those which followed the filings and lone district court opinion entered on May 24, 2011."), p. 9 ("This . . . case . . . is principally a First Amendment, due process and retaliation case filed against persons acting under color of state law to suppress plaintiff's exercise of protected activities."), p. 11 (complaining of the investigative process being applied to plaintiff by the Third Department and the Committee on Professional Responsibility). As indicated above, plaintiff contends that the complained of actions were taken against him because of his outspoken positions on various issues in violation of his constitutional rights.

b. Claims against the City

Plaintiff alleges that the City of Utica is engaged in a policy, custom and practice of suppressing Plaintiff's protected activities as a civil rights advocate and local business owner, compl. ¶ 8, and retaliated against him for his past civil actions against the City. See compl. ¶ 41.*fn7 In the same obtuse fashion that the rest of the complaint is pleaded, plaintiff alleges that the City "failed to properly train and supervise its agents to observe civil rights laws" and "provided advice and technical assistance to other adversaries acting in concert with them resulting in damage to plaintiff's domestic relations cases." Id. ¶ 42.*fn8 He asserts further that the City "refused to act upon criminal charges lodged by plaintiff and joint complainants" against a "discharged lawyer for misappropriating more than $10,000," instead referring the matter for "civil recourse." Id. ¶ 43. Plaintiff alleges that a former Utica mayor "and his associates" filed felony charges against a former City employee for allegedly charging $16 of gas without authorization, apparently intending to use this situation as a contrast to the City's treatment of his complaint. Id. ¶ 43. Plaintiff also alleges that the City's "select treatment" enabled the "lawyer criminal to continue his crimes at another office in Syracuse," but that, with plaintiff's assistance, this "lawyer criminal" was prosecuted and convicted in another county. Id. ¶ 44.

It appears that plaintiff is complaining about the City's lack of prosecution of this attorney which, somehow, contributed to plaintiff's disciplinary problems. In this regard, plaintiff asserts that this attorney filed a disciplinary grievance against plaintiff in 2005 which "was featured in the above referenced ethics ...


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