In the Matter of Michael J. Aviles (admitted as Michael John Aviles), an attorney and counselor-at-law: Attorney Grievance Committee for the First Judicial Department, Petitioner, Michael J. Aviles, Respondent.
proceedings instituted by the Attorney Grievance Committee
for the First Judicial Department. Respondent, Michael J.
Aviles, was admitted to the Bar of the State of New York at a
Term of the Appellate Division of the Supreme Court for the
Second Judicial Department on March 3, 1999.
Dopico, Chief Attorney, Attorney Grievance Committee, New
York (Yvette A. Rosario, of counsel), for petitioner.
Celli Brinckerhoff & Abady LLP. (Hal R. Lieberman, of
counsel), for respondent.
Michael J. Aviles was admitted to the practice of law in the
State of New York by the Second Judicial Department on March
3, 1999, under the name Michael John Aviles. At all times
relevant to this proceeding, respondent maintained an office
for the practice of law within the First Judicial Department.
unpublished order of April 27, 2016, this Court granted the
petition of the Attorney Grievance Committee (the Committee)
for an order giving collateral estoppel effect to an order
and opinion of the United States Bankruptcy Court for the
Southern District of Texas dated June 18, 2014. The Texas
order arose out of respondent's improper conduct in the
bankruptcy proceeding In re Brown (511 BR 843
[Bankr. S.D. Tex 2014]), in that respondent failed to
disclose material information to the court and trustee and
engaged in the unauthorized practice of law in Texas. Based
on the Texas court's decision, this Court found that
respondent had violated New York Rules of Professional
Conduct (22 NYCRR 1200.0) rule 3.3(a)(1) (knowingly making a
false statement of fact or law to a tribunal), rule 5.5(a)
(unauthorized practice of law), rule 8.4(c) (conduct
involving dishonesty, fraud, deceit, or misrepresentation),
and rule 8.4(d) (conduct prejudicial to the administration of
justice) and directed a sanction hearing be held. Respondent
did not oppose the Committee's petition for collateral
facts underlying the petition are as follows: in November
2013, respondent agreed to represent a friend who had been
ordered to appear as nonparty witness for a Bankruptcy Rule
2004 Examination (that is, a deposition) in a chapter 7
bankruptcy proceeding in the Southern District of Texas (the
District Court). The District Court ordered the witness to
appear after it transpired that she had received text
messages from the late debtor's driver, who purportedly
stated that he knew where the debtor's assets were
located. Respondent was not admitted in the Southern District
of Texas, nor did he apply to be admitted pro hac vice.
December 5, 2013, the witness, represented by respondent,
appeared for her deposition via videoconference in Miami,
Florida, where she lived. She testified that her iPhone 4s
had suffered a data loss approximately three days earlier
which resulted in erasure of all her text messages, but
promised the trustee that she would attempt to recover the
lost data. On December 10, 2013, the witness purportedly lost
her iPhone 4s and, on December 13, 2013, the trustee filed an
emergency motion to compel her to turn over the iPhone.
Although the witness paid for respondent's plane ticket
to Miami, respondent received no other remuneration for
representing the witness.
December 18, 2013, the bankruptcy court conducted a hearing
on the trustee's emergency motion at which respondent
appeared telephonically on behalf of the witness, who had
informed him days earlier that she had lost her iPhone 4s.
Respondent did not inform the court or the trustee
that the witness had apparently lost her iPhone, but argued
that requiring her to turn over her phone violated her Fourth
Amendment rights. The court ordered the witness to produce
her iPhone to the trustee on December 26, 2013.
December 26, 2013, respondent gave the trustee's local
counsel an iPhone 5s (as opposed to an iPhone 4s) that the
witness had bought on December 10, 2013; this iPhone was not
the one the court had directed to be produced. On December
27, 2013, upon motion of the trustee, the bankruptcy court
issued an order directing respondent and the witness to show
cause why they should not be sanctioned for contempt and
spoliation of evidence.
a sanction hearing, the bankruptcy court found that
respondent had engaged in the unauthorized practice of law
and that he had made a materially false statement to the
court by making arguments against the production of the
witness's iPhone 4s and then agreeing to produce such
when he knew it was lost, and that his conduct rose "to
the level of a fraud on the Court" (In re
Brown, 511 BR at 852). The court directed respondent to
pay $54, 421.03 in sanctions, representing the fees and
expenses the trustee had incurred and that were directly
attributable to his attempts to recover the lost iPhone 4S.
Respondent timely paid this amount. The court also directed
the trustee to forward a copy of the sanction decision to the
the Committee Hearing Panel (the Panel), respondent averred
that when he produced the witness's iPhone 5s to the
trustee's IT expert, he immediately disclosed that it was
not the iPhone 4s that the trustee sought. He further averred
that no one raised his non-admitted status until the sanction
hearing before the bankruptcy court. Additionally, respondent
noted, he fully cooperated with and apologized to the
bankruptcy court and, to ameliorate his conduct, took 7.5
hours of CLE courses related to ethics and made a $2, 500
donation to a pro bono organization in Houston. He also noted
that he had promptly paid the $54, 000 in sanctions, in
addition to approximately $200, 000 in legal fees to local
counsel that represented him and the witness before the
bankruptcy court. Respondent did acknowledge his misconduct,
apologize, and express remorse. At the Texas sanction
hearing, however, the trustee's local counsel and IT
expert testified that respondent had not, in fact,
immediately disclosed that the witness's iPhone 4s had
been lost, and the bankruptcy court found that
respondent's testimony on this issue was not credible
(In re Brown, 511 BR at 853).
Panel found that respondent's unauthorized practice of
law before the Texas bankruptcy court was aggravated by the
fact that he had been practicing law for 15 years at the time
that he engaged in this misconduct. As to his
misrepresentation to the court, the Panel was deeply troubled
by respondent's initial failure to disclose to the
bankruptcy court that the witness had lost her iPhone4s.
Indeed, the Panel noted, respondent presented a vigorous
Fourth Amendment argument against the production of the
iPhone 4s during a subsequent motion to compel hearing. The
Panel found this conduct "dishonest and deceitful."
In addition, the Panel found ...