Koziol v. Peters et al

Filing 6

DECISION AND ORDER denying Pltf's 4 Motion for an Order to Show Cause. Pltf may move for an injunction but must do so in accordance with the standard Notice of Motion procedure of this District, which includes service of the proper motion papers on the adverse parties at the correct time in advance of the motion return date. Signed by Senior Judge Thomas J. McAvoy on 5/22/12. (sfp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
LEON R. KOZIOL, individually and as natural
parent of Child "A" and Child "B,"
Plaintiff,
-against-

12-CV-823

KAREN PETERS, et al.,
Defendants.
_________________________________________
THOMAS J. McAVOY,
Senior United States District Judge

DECISION & ORDER
I.

INTRODUCTION
The Clerk has presented to the Court an application from Plaintiff seeking an Order:

(1) requiring certain Defendants1 to show cause why Plaintiff’s attorney “license
suspension order issued on September 23, 2010, having a one year term, together with
related orders enjoining the conduct of ongoing reinstatement process being applied to
Plaintiff” should not be vacated or enjoined; and (2) restraining the enforcement of the
September 23, 2010 Order of the New York Supreme Court, Appellate Division, Third
Department. See In re Koziol, 76 A.D.3d 1136, 1137-38, 907 N.Y.S.2d 697 (3rd Dept.
2010) appeal dismissed, 15 N.Y.3d 943, 940 N.E.2d 920 (N.Y. 2010) and leave to appeal

1

This includes the nam ed Justices of the New York State Suprem e Court, Appellate Division, Third
Departm ent; the Chairperson of the Third Departm ent’s Com m ittee on Professional Standards; and two
“agents” of the Third Departm ent’s Com m ittee on Professional Standards.

1

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).2

2

The Third Departm ent’s Septem ber 23, 2010 Order provided:

On February 5, 2010, the Appellate Division, Fourth Departm ent suspended respondent from
the practice of law for willful violation of an order of support issued by the Suprem e Court of
Oneida County on October 1, 2009 (see Judiciary Law § 90[2–a] ), which suspension
continues until further order of the Fourth Departm ent. By order dated April 28, 2010, the
Fourth Departm ent transferred the instant disciplinary m atters to this Court for disposition.
Based on the findings of the Referees and our review of the record, and having heard
respondent at oral argum ent, we find respondent guilty of the following professional
m isconduct with respect to his representation of five clients and in his responses to petitioner.
Respondent engaged in conduct involving dishonesty, fraud, deceit or m isrepresentation with
respect to five clients (Brown, Tanoury, Pritchard, Greany and Kennedy) and in his
responses to petitioner in violation of form er Code of Professional Responsibility DR
1–102(a)(4) (22 NYCRR 1200.3[a] [4] ); engaged in conduct prejudicial to the adm inistration
of justice with respect to one client (Kennedy) and in his responses to petitioner in violation of
form er Code of Professional Responsibility DR 1–102(a)(5) (22 NYCRR 1200.3[a][5] ); failed
to take steps to the extent reasonably practicable to avoid foreseeable prejudice to the rights
of a client (Brown) in violation of form er Code of Professional Responsibility DR 2–110(a)(2)
(22 NYCRR 1200.15[a][2] ); entered into a business transaction with a client (Greany) and
failed to disclose the term s of the agreem ent 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 term s of the transaction and to respondent's
inherent conflict of interest in the transaction in violation of form er Code of Professional
Responsibility DR 5–104(a)(1), (2) and (3) (22 NYCRR 1200.23 [a][1], [2], [3] ); neglected the
legal m atters of three clients (Pritchard, Greany and Kennedy) in violation of form er Code of
Professional Responsibility DR 6–101(a)(3) (22 NYCRR 1200.30[a] [3] ); knowingly m ade a
m isleading statem ent of fact to a client (Brown) in violation of form er Code of Responsibility
DR 7–102(a)(5) (22 NYCRR 1200.33[a] [5] ); and engaged in conduct which reflects
adversely upon his fitness as a lawyer with respect to five clients (Brown, Tanoury, Pritchard,
Greany and Kennedy) and in his responses to petitioner in violation of form er Code of
Professional Responsibility DR 1–102(a)(7) (22 NYCRR 1200.3[a][7] ).
Respondent has engaged in m ultiple instances of professional m isconduct over a period of
years. The record before us also raises concerns about respondent's continuing ability to
discharge his professional obligations. Under all of the circum stances presented, and despite
his previously unblem ished disciplinary record, we conclude that respondent should be
suspended from the practice of law for a period of one year.
ORDERED that respondent's cross m otions are denied in their entirety; and it is further
ORDERED that petitioner's m otions to confirm the Referees' reports are granted; and it is further
ORDERED that respondent is found guilty of professional m isconduct as set forth in this
decision; and it is further
(continued...)

2

In a rambling affidavit in support of the show cause application, Plaintiff appears to
assert that the state court’s decisions to suspend him from the practice of law, to continue
such suspension, and to investigate him for actions that might have violated the applicable
rules of conduct are in retaliation for his on-going speech on matters related to parental
rights and critical of the state court’s handling of child support and custody maters.
Plaintiff asserts that on April 13, 2012, he received a Chief Attorney’s Inquiry from the New
York State Supreme Court, Appellate Division, Third Department’s Committee on
Professional Standards inquiring whether, inter alia, Plaintiff has continued to hold himself
out as a practicing attorney, offered 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.3 As indicated above, Plaintiff seeks to
restrain enforcement of the Third Department’s September 23, 2010 Order that
suspended him from the practice of law and that, apparently, is the reason that he has not
been reinstated, and to prevent other action that might hinder the “ongoing reinstatement
process.”
II.

DISCUSSION
Northern District of New York Local Rule 7.1(e) provides:
[A] motion brought by Order to Show Cause must include an affidavit clearly
and specifically showing good and sufficient cause why the standard Notice
of Motion procedure cannot be used. Reasonable advance notice of the

2

(...continued)
ORDERED that respondent is suspended from the practice of law for a period of one year, effective
im m ediately, and until further order of this Court.
3

This part of the inquiry appears to be in reference to Judge Hurd’s May 24, 2011 Mem orandum Decision and Order in the consolidated cases of John Parent, a/k/a Leon R. Koziol v. State of New York, et
al., 99-CV-233 (NDNY)(lead case) and Koziol v. Lippm an, 10-CV-1361 (NDNY)(m em ber case).

3

application for an Order to Show Cause must be given to the other parties,
except in those circumstances where the movant can demonstrate, in a
detailed and specific affidavit, good cause and substantial prejudice that
would result from the requirement of reasonable notice.
Plaintiff has failed to provide an affidavit clearly and specifically showing good and
sufficient cause why the standard Notice of Motion procedure cannot be used. The
impetus for Plaintiff’s current application appears to be the inquiry he received over a
month ago from the Commission on Professional Standards, and the impact that the
inquiry might have on his reinstatement to the practice of law. The fact that Plaintiff has
waited for over a month to challenge this action mitigates against abandoning the standard
Notice of Motion procedure in this case.
Plaintiff has also failed to provide an affidavit showing that reasonable advance
notice of the application for an Order to Show Cause was given to the other parties, see
Aff. of Serv. (showing that the papers in support of the application were “caused ... to be
delivered” to the Clerk of the Third Department, and to the offices of the Third
Department’s Committee on Professional Standards, on the day the application was filed
with the Court), and to provided a detailed and specific affidavit demonstrating good cause
and substantial prejudice that would result from the requirement of reasonable notice.
Indeed, one of Plaintiff’s exhibits in support of the Show Cause application includes an
April 20, 2012 letter he wrote to members of Congress addressing parental issues and
lamenting “how corrupt a top judge [New York’s Chief Justice] can become when too much
power is conveyed to a single public servant.” See Ex. C. This letter is dated after Plaintiff
purportedly received the Committee on Professional Standards’ Chief Attorney’s Inquiry,
and provides some indication that Plaintiff’s First Amendment right to free speech has not
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been chilled by the complained of action. Plaintiff has provided little, if anything, to indicate
that Defendants are causing substantial prejudice that cannot be addressed on the next
proper motion return date.
V.

CONCLUSION
For the reasons set forth above, the application for an Order to Show Cause [dkt. #

4] is DENIED. Plaintiff may move for an injunction but must do so in accordance with the
standard Notice of Motion procedure of this District, which includes service of the proper
motion papers on the adverse parties at the correct time in advance of the motion return
date. See L.R. 7.1.
IT IS SO ORDERED
Dated: May 22, 2012

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