In re: Alden Banniettis, Esq.
MEMORANDUM DECISION AND ORDER. The respondent is disbarred. See attached order for further information.. Ordered by Judge Brian M. Cogan on 8/3/2012. (Siegfried, Evan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
DECISION AND ORDER
12 me 420 (BMC)
an attorney admitted to practice before this
BEFORE THE GRIEVANCE COMMITTEE OF THE UNITED STATES DISTRICT
COURT, EASTERN DISTRICT OF NEW YORK
Respondent has moved for a stay of this Committee's Order entered July 9, 2012, which
disbarred respondent from practicing before this Court. The Order was based upon the
reciprocal recognition of a disbarment order entered by the Appellate Division, Second
Department, dated April 30, 2012. The Second Department's disbarment order, in tum, was
entered after a hearing before a Special Referee who found a pattern of misconduct. For the
reasons set forth below, respondent's motion is denied.
In numerous cases in the New York City Civil Court, Queens County, respondent filed
motion papers that differed in content from the motion papers that he served on his adversary in
each proceeding. Ultimately, the Civil Court conducted a consolidated hearing on sanctions and
concluded that respondent had deliberately served non-conforming motion papers on his
adversaries, and had also deliberately filed false affidavits of service, in numerous cases. It
imposed a sanction on him of $34,000. The Grievance Committee for the Tenth Judicial District
then obtained leave to commence disciplinary proceedings, and after a hearing before a Special
Referee, which resulted in a report and recommendation, the Second Department disbarred
respondent. In determining that disbarment was the appropriate disciplinary sanction for the
misconduct, the Second Department held:
In determining the appropriate measure of discipline to impose, we note
that the respondent demonstrates no remorse and persists in blaming others for
what he describes as harmless clerical errors. However, the sheer volume of
documents at issue suggests otherwise and dispels respondent's arguments that he
is innocent of conduct prejudicial to the administration of justice and/or conduct
involving dishonesty, fraud, deceit or misrepresentation. His conduct goes to the
very core of the judicial system.
In seeking to deny reciprocal recognition of the Second Department's order, respondent
contends that he was denied due process of law in the Civil Court in making its determination
that respondent had intentionally engaged in severe misconduct, and that the Second Department
improperly applied collateral estoppel to the Civil Court's findings in imposing discipline. He
claims principally that because the witnesses at the hearing in the Civil Court (apparently other
lawyers who had received his non-conforming papers) were unsworn, and he was not permitted
to cross-examine them, he was denied due process. Petitioner has moved for leave to appeal the
Second Department's disbarment order to the Court of Appeals, and represents that this motion
In determining whether to give reciprocal effect to a disbarment order of another court,
we are to apply standard set forth in Local Rule 1.5(d). See In re Gouiran, 58 F .3d 54, 57 (2d
Cir. 1995). That rule provides that an attorney seeking to avoid the imposition of reciprocal
discipline needs to establish
by clear and convincing evidence (i) that there was such an infirmity of proof of
misconduct by the attorney as to give rise to the clear conviction that this court
could not consistent with its duty accept as final the conclusion of the other court,
or (ii) that the procedure resulting in the investigation or discipline of the attorney
by the other court was so lacking in notice or opportunity to be heard as to
constitute a deprivation of due process, or (iii) that the imposition of discipline by
this court would result in grave injustice.
Local Rule 1.5(d), in turn, is derived from the Supreme Court's decision in Selling v. RadforQ,
243 U.S. 46 (1917), where the Supreme Court, in considering the imposition of reciprocal
discipline against a member of its own bar, determined that it would recognize other courts'
unless, from an intrinsic consideration of the state record, one or all of the
following conditions should appear: I, That the state procedure, from want of
notice or opportunity to be heard, was wanting in due process; 2, that there was
such an infirmity of proof as to facts found to have established the want of fair
private and professional character as to give rise to a clear conviction on our part
that we could not, consistently with our duty, accept as final the conclusion on
that subject; or 3, that some other grave reason existed which should convince us
that to allow the natural consequences of the judgment to have their effect would
conflict with the duty which rests upon us not to disbar except upon the
conviction that, under the principles of right and justice, we were constrained so
Id. at 50-51.
Respondent has failed to demonstrate grounds for declining recognition of the Second
Department's Order under any evidentiary standard, let alone by clear and convincing evidence.
At the outset, it should be noted that this Committee is not reciprocally recognizing the Civil
Court's sanction order; it is recognizing the Second Department's disbarment order. As to the
proceedings in the Second Department, there can be no question that respondent had notice and a
full opportunity to be heard. He was specifically asked if he wanted to call witnesses, and he
declined. His participation was limited but the record shows that this was solely the result of his
own choice. 1 His attack on the proceedings before the Special Referee amounts to nothing more
than an effort to relitigate adverse evidentiary rulings, in which the Special Referee determined
that some of his proffered evidence was not relevant because it neither pertained to the factual
allegations against him nor did it relate to mitigation.
Even if we were basing our recognition on the Civil Court's findings, respondent has not
demonstrated any infirmity in that process sufficient show a denial of due process or any
injustice, let alone a grave injustice. As respondent himself stated to the Civil Court, when the
judge told him she wanted him sworn, "An attorney is always under oath, your Honor." Both
federal and state courts recognize that a sanctions hearing need not be a trial to comport with due
process. See In re Stein, 127 F.3d 292,295 (2d Cir. 1997), citing, Childs v. State Farm Mut.
Auto. Ins. Co., 29 F.3d 1018, 1027 (5th Cir. 1994) ("Simply giving the individual accused of a
Rule II violation a chance to respond through the submission of a brief is usually all that due
process requires"); 22 N.Y. C.R.R. §130-1.1 (imposition of sanctions may be made "after a
reasonable opportunity to be heard. The form of the hearing shall depend upon the nature of the
conduct and the circumstances of the case."). Sanctions are often imposed based on the conduct
that the Court has observed, the only constraint being that the attorney in question must have
notice and an opportunity to explain why he should not be sanctioned. Indeed, the Second
Circuit, when it imposes sanctions, most frequently does so based on the filings that have been
made before it, without the need to call let alone swear attorney witnesses. See In re Smith, 645
F.3d 186, 191 (2d Cir. 2011) (raising issue of sanctions sua sponte, to be determined solely on
Considering the nature of the charges against respondent, it is ironic that he has submitted an incomplete and
somewhat one-sided record in support of his motion to this Committee. For example, while he has submitted the
affidavit in opposition to his motion for leave to appeal to the Court of Appeals, he has omitted the crucial
documents that were annexed to that opposition, such as the Report of the Special Referee or the transcript of those
proceedings. He cannot meet the "clear and convincing" standard to avoid reciprocal recognition on the limited
record he has submitted.
briefing by the parties). It seems to us that all the Civil Court needed to do to afford respondent
due process was to compare the various motion papers as filed and as served, hear from
respondent as to why there were significant differences, and reach a conclusion as to whether his
conduct was merely negligent or deliberate. That is what it did.
Finally, we note that respondent's attack on the Second Department's use of collateral
estoppel is to some degree beside the point. Even though respondent has only given us a partial
record of the state court proceedings, it is clear that there were additional findings made by the
Special Referee, and adopted by the Second Department, that were based upon a de novo review.
The Second Department specifically noted in its disbarment order that
The respondent was barred, based on the doctrine of collateral estoppel, from
relitigating certain factual issues which arose from matters previously held before
the Honorable Bernice D. Siegal. These issues were referred to the Special
Referee to hear and report solely on the issue of mitigation. The remaining
factual issues raised in the petition [for sanctions] were referred to the Special
Referee to hear and report.
(emphasis added). There is no attempt by respondent to differentiate between the issues that
were determined de novo from those that were determined by collateral estoppel, but it is
certainly possible that these pertained to other instances of non-conforming motion papers that
were not part of the consolidated proceedings before Judge Siegal. Since it is respondent's
burden to show by clear and convincing evidence that the Second Department's order should not
be reciprocally recognized, his failure to explain the de novo findings against him results in a
lack of proof for his claims.
At bottom, respondent is attempting to relitigate the proceedings before the Civil Court
and, to the unspecified extent upon which the Second Department relied on collateral estoppel, to
relitigate the applicability of that doctrine. Neither constitutes grounds for staying the Order of
this Committee. Respondent is disbarred.
Dated: Brooklyn, New York
August 3, 2012
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