In my recent end-of-year update, available here, I began a conversation with my partner Tyler Maulsby, an expert in professional responsibility and ethics, about whether it was proper for lawyers at Richard Liebowitz's law firm to continue to use the name Liebowitz Law Firm, even though Liebowitz has been suspended from practice. That discussion is expanded below.
1.Richard Liebowitz has been suspended from practice in the state of New York as well as in the Southern District. What does this mean?
Right now Liebowitz is suspended on an interim basis in both the Southern District of New York (SDNY) and New York State. It’s important to understand that these are two separate proceedings. The New York State Courts have jurisdiction over lawyers’ conduct within the state generally but any order of discipline by the State’s Attorney Grievance Committee would only impact Liebowitz’s ability to practice before the New York State Courts. The federal courts have independent jurisdiction to regulate lawyers who appear before their tribunals. So the SDNY suspension order impacts Liebowitz’s ability to appear before courts in the Southern District of New York and the New York State suspension order impacts Liebowitz’s New York law license more generally in the state.
2. What is likely to happen next with this process?
Liebowitz received an “interim suspension” in both cases. That means he was immediately suspended pending a hearing to determine what final order of discipline should be imposed. Interim suspensions are only available in certain cases – mainly where a court believes that the lawyer’s conduct is so serious that the lawyer poses an imminent threat to the public. So in both the SDNY and the New York State disciplinary cases, the parties will proceed to a hearing where a referee (in the state proceeding) or a magistrate (in the federal proceeding) will make findings of fact. The court will then have the ability to determine what type of discipline (if any) should be imposed. In addition, whenever a lawyer is disciplined in one jurisdiction, it is highly likely that any other jurisdiction where the lawyer is admitted will begin “reciprocal” disciplinary proceedings. That’s what happened in New York State. After the SDNY panel made an interim finding of misconduct and temporarily suspended Liebowitz, New York State jumped in and did the same thing, relying on the findings from the federal district. If Liebowitz is admitted in any other jurisdictions (state or federal), it’s likely that those jurisdictions will also start reciprocal discipline proceedings at some point. That already has happened in the Northern District of Texas, which has suspended Richard Liebowitz.
3. Is Liebowitz likely to be disbarred?
It’s hard to tell but I’d have to say no. The alleged conduct is certainly serious. However, courts will consider a variety of mitigating factors when determining the appropriate level of discipline including the attorney’s age and experience as well as remorse. Here, Liebowitz is a relatively young and inexperienced lawyer and he has admitted in earlier proceedings that he essentially got in over his head trying to manage the firm’s incredibly high caseload. Also, the charges against him do not involve allegations of client theft such as misappropriating client funds. As a result, he may escape disbarment, but it will certainly be an uphill battle for him to get his license restored.
4. I see that even though Liebowitz does not appear to be involved, another attorney at his firm still is using Liebowitz Law Firm, PLLC as the name of the firm and emails go to @liebowitzlawfirm.com. Is that OK to do?
When a lawyer is suspended, he must immediately cease practicing law and remove all attorney advertising that is in circulation. Also, any firm name that remains cannot be misleading.
5 Does it matter that Richard’s sister, Rebecca Liebowitz, a relatively recent graduate has joined the firm? Does that make it OK to continue to use the Liebowitz name?
My understanding is that Liebowitz’s sister (who has the same last name) is involved with the firm. In theory, using her name would be permissible as long as she is actually running things. However, the firm cannot give the misleading impression that the “Liebowitz” in “Liebowitz Law Firm” is Richard. Similarly, his sister cannot simply be a figurehead and allow her brother to run things in the background. Also, as a lawyer she has a duty of competence to the firm’s clients. If she is managing the firm, she must be competent to do so and ensure that all client matters are being properly handled.
6. Are there any disclosures that the firm must or should make to tell clients and potential clients that Richard Liebowitz is not active at the firm?
He certainly cannot appear on the firm’s website, letterhead, or any advertisements or other communications with the firm’s name. He’s also not allowed to share in any fees that the firm generates after his suspension (he has limited entitlement to fees earned before he was suspended). Given Liebowitz’s notoriety, the firm should make sure that on a case-by-case basis it is not giving the misleading impression that Richard is still part of the firm. In other words, a client should not, under any circumstances, think that they are hiring Richard Liebowitz. If that’s a reasonably foreseeable risk, the firm should take steps to correct that misimpression. The safest thing to do would be to have a disclaimer somewhere on the website or other communications. But short of that, the firm needs to carefully police that issue.
7. Are there likely to be any repercussions if it turns out that the continued use of the firm name is not proper?
Yes. New York is very strict when it comes to the conduct of suspended and disbarred lawyers. Once a lawyer is suspended, he or she cannot have any involvement in the firm’s practice. Unlike other jurisdictions, this also means working in “non-lawyer” functions at the firm such as a paralegal or legal assistant. The suspended lawyer has to step away. Period. If the lawyer tries to secretly practice while suspended or disbarred there could be serious consequences both for the suspended or disbarred lawyer and for any other lawyers at the firm who facilitated the conduct.