OPINION OF THE COURT
Per Curiam.
Respondent Richard H. Zweig was admitted to the practice of law in the State of New York by the First Judicial Department on July 9, 1984 as Richard Henry Zweig. At all times relevant to this proceeding, he maintained an office for the practice of law within the First Judicial Department.
The Departmental Disciplinary Committee initiated a sua sponte investigation against respondent after he testified as a mitigation witness in a disciplinary proceeding concerning attorney Mac Truong (Matter of Truong, 22 A.D.3d 62 [1st Dept 2005], appeal dismissed 6 N.Y.3d 799 [2006]).
The Committee's investigation focused on respondent's participation, between 2000 and 2007, in various state and federal actions in which he purportedly represented the government of Vietnam at Truong's direction. Specifically, the litigation concerned assets that had been frozen in the United States when Vietnam nationalized 10 shipping companies that were doing business collectively under the name Vishipco. After Vishipco was nationalized, Vietnam changed the name to Vitranschart.
On or about July 15, 2009, the Disciplinary Committee served respondent with a notice and statement of charges alleging
In August 2009, respondent served an answer denying the charges. During October and November 2009, a referee held seven days of hearings on the charges. On January 6, 2010, the Referee issued a 43-page report of his "Initial Findings of Facts" wherein he found, among other things, that respondent testified falsely and conspired with Truong to use litigation improperly, and that respondent was "a puppet and Mac Truong was his puppeteer" who directed various fraudulent conduct along the way.
Following the parties' submissions of memoranda, wherein respondent requested reconsideration of the Referee's findings on the charges, the Referee issued a report on March 15, 2010 denoted "Notice of Charges Sustained," in which he sustained eight out of nine charges, having not sustained charge seven (intentionally prejudicing or damaging his client in violation of
After hearing oral argument, a Hearing Panel issued a report dated October 20, 2010, where it agreed with the Referee's findings and recommendation of disbarment.
The Disciplinary Committee now moves for an order pursuant to Rules of the Appellate Division, First Department (22 NYCRR) §§ 603.4 (d) and 605.15 (e) (2) confirming the report of the Referee and the determination of the Hearing Panel, and disbarring respondent from the practice of law. Respondent argues that disbarment is disproportionate to the non-venal conduct involved and requests a sanction between a censure and a one-year suspension.
In finding respondent guilty of commencing and prosecuting unauthorized and fraudulent litigation in state and federal court purportedly on behalf of the government of Vietnam (charges one and two), the Referee held that respondent
In sustaining charges three through six, the Referee found that respondent testified falsely at Truong's 2004 disciplinary proceeding, and testified falsely in his own deposition before the Committee in 2008 and 2009, when he denied that he colluded with Truong in connection with the Vitranschart litigation.
The Referee did not sustain charge seven (intentionally prejudicing or damaging his client in violation of DR 7-101 [a] [3] [22 NYCRR 1200.32 (a) (3)]), having determined that although respondent did intentionally fail to move to dismiss the counterclaims against Vitranschart when invited to do so by the federal court, "because [respondent] was still working with Mac Truong to use that litigation for improper purposes," he did not believe that failure established that respondent intentionally or actually prejudiced or damaged his client. In sustaining charge
The Referee summarized respondent's conduct as follows:
Additional examples of respondent's handling of the litigations in a manner that assisted Truong but was not in the best interest of his putative client include that: the language of the complaint in federal action No. 2 (and most other documents) was consistent with Mac Truong's own writing and entirely inconsistent with respondent's; he made an incomprehensible summary judgment motion asking the federal court to "certify facts" which were drafted to benefit Truong to stave off the state court; he joined in baseless attacks on Vishipco's attorney, David Levy, including moving for his disqualification, which was consistent with Truong's long-running "vendetta" against Levy; and he "consistently failed to fully and accurately inform his client of the true nature of the litigation."
With respect to whether respondent had in fact been authorized to represent Vietnam, the Referee concluded as relevant:
In mitigation respondent offered, among other things, his lack of a disciplinary history; the absence of a venal motive and, in fact, that he lost money insofar as he took the case on a one-third contingency basis and failed to obtain any recovery; his client was not harmed; his good reputation in the legal community as testified to by two character witnesses (one who skimmed the voluminous record and the other who declined counsel's offer to do so before the hearing); that a suspension or disbarment would irreparably harm his low-income immigrant clients; and that "judgment should be tempered with mercy" — detailing the significant effects disbarment would have on his family.
This Court confirms the findings of fact and conclusions of law of the Referee and Hearing Panel as to liability and to impose the sanction of disbarment (see Matter of Alejandro, 65 A.D.3d 63 [1st Dept 2009], appeal dismissed 13 N.Y.3d 788 [2009], lv denied 13 N.Y.3d 714 [2009] [disbarment for conduct that included testifying falsely during deposition before DDC]; Matter of Fagan, 58 A.D.3d 260 [1st Dept 2008], lv denied 12 N.Y.3d 813 [2009]; Matter of Truong, 22 A.D.3d 62 [2005]; Matter of Gadye, 283 A.D.2d 1 [1st Dept 2001] [disbarment for, inter alia, bad faith court filings, failure to advise of conflict of interest issues and participation in a fraud upon bankruptcy court]; Matter of Gelbwaks, 260 A.D.2d 47 [1st Dept 1999] [disbarment for collusion with client in bogus transfer of assets to evade creditor, bad faith bankruptcy filings, unauthorized disbursement of client funds, impermissible conflict of interest with client in a financial transaction]; Matter of Kramer, 247 A.D.2d 81 [1st Dept 1998], lv denied 93 N.Y.3d 883 [1999], cert denied 528 U.S. 869 [1999] [disbarment for pattern over several years of, inter alia, willful disobedience of discovery orders, and filing an unauthorized appeal and petition for rehearing after his discharge by client; disciplinary history and no remorse]).
Respondent's contention that he has been unfairly blamed for the misconduct committed by disbarred attorney Mac Truong, and that disbarment is too severe of a sanction for whatever misconduct he engaged in as a result of his inexperience and lack of legal sophistication minimizes his misconduct. Respondent testified to his active participation in litigation that stretched over seven years in multiple courts. While he is correct that the Committee failed to produce a witness to testify that he conspired or colluded with Truong in the frivolous litigation, the record is replete with pleadings, motions and other filings which were drafted for the benefit of Truong and potentially disadvantaged his own client. Moreover, while the Referee determined that respondent was given some measure of authority to appear on behalf of the government of Vietnam, he
Accordingly, the Committee's motion to confirm should be granted and respondent disbarred and his name stricken from the roll of attorneys and counselors-at-law in the State of New York.
Respondent disbarred, and his name stricken from the roll of attorneys and counselors-at-law in the State of New York, effective the date hereof.
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