Exploring Alleged Lawyer Falsehoods in Mediation Proceedings

"The public—including other litigants—and other judges who may come into contact with [Richard] Liebowitz, a frequent litigant in this District, have an interest in the Court's determination of the veracity of these representations."

|The Volokh Conspiracy |

From Monday's decision by Judge Jesse M. Furman in Usherson v. Bandshell Artist Mgmt. (S.D.N.Y.):

Pending before the Court in this copyright case is Defendant Bandshell Artist Management's motion for sanctions against Plaintiff and Plaintiff's counsel, Richard Liebowitz—a frequent target of sanctions motions and orders imposing sanctions in this District…. "In his relatively short career litigating in this District, Richard Liebowitz has earned the dubious distinction of being a regular target of sanctions-related motions and orders. Indeed, it is no exaggeration to say that there is a growing body of law in this District devoted to the question of whether and when to impose sanctions on Mr. Liebowitz alone." …

Defendant's motion turns in large part on the veracity of factual representations that Liebowitz has made to the Court, some under oath. In particular, Liebowitz asserts that a mediator in the Court-annexed Mediation Program gave advance permission by telephone for (1) an associate to appear instead of Liebowitz at an October 31, 2019 in-person mediation, and (2) Plaintiff Arthur Usherson to appear telephonically at the mediation, rather than in person. Defense counsel asserts that those representations are false—and that the mediator (the "Mediator") has indicated that, if called upon to do so, would testify to that effect. Determining the truth or falsity of Liebowitz's assertions is critical to the integrity of both the proceedings before the Court and the Court-annexed Mediation Program itself.

[Footnote moved:] Notably, Liebowitz's veracity has already been found wanting by other Judges on this Court. See, e.g., Nov. 13, 2019 Minute Entry, Berger v. Imagina Consulting, Inc., 18-CV-8956 (CS) (noting a finding on the record at a conference held on November 13, 2019, that Liebowitz had "willfully lied to the Court"); Sands v. Bauer Media Group USA, LLC, No. 17-CV-9215 (LAK), 2019 WL 6324866, at & n.1 (S.D.N.Y. Nov. 26, 2019) (describing several statements made by Liebowitz as "false").

Determining the truth or falsity of Liebowitz's assertions, however, requires delving into an area that is usually beyond the scrutiny of the Court and the public. That is, to repurpose a familiar phrase, what happens in mediation is generally supposed to stay in mediation. See, e.g., Rule 2(a), Procedures of the S.D.N.Y. Mediation Program (Dec. 26, 2018) ("Mediation Rules") (providing that communications made "exclusively during or for the mediation process shall be confidential"), available at https://nysd.uscourts.gov/programs/mediation-adr; see also, e.g., In re Teligent, Inc., 640 F.3d 53, 57 (2d Cir. 2011) ("Confidentiality is an important feature of the mediation and other alternative dispute resolution processes."). The general rule of confidentiality is eminently sound. As the Second Circuit has explained, "confidentiality is 'essential' to [the] … vitality and effectiveness" of mediation. "Promising participants confidentiality in [mediation] proceedings promotes the free flow of information that may result in the settlement of a dispute, and protect[s] the integrity of alternative dispute resolution generally."

That said, there are important exceptions to the rule of confidentiality in the mediation context…. [T]here are cases in which the strong interest in preserving confidentiality in mediation must—and does—give way to other, even weightier interests.

This is such a case. On October 7, 2019, the Court ordered the parties to comply with the Court's prior Mediation Referral Order, by participating in an "in-person mediation no later than October 31, 2019." The parties agreed to hold the mediation on the very last possible day—October 31, 2019—but neither Liebowitz nor his client appeared. Instead, two associates from Liebowitz's firm—neither of whom had (or has since) entered an appearance on behalf of Plaintiff and neither of whom had much, if any, knowledge of the case—arrived and confirmed that Liebowitz and Plaintiff would not be attending in person. After Liebowitz's associates, Defendant, and defense counsel spoke briefly with Plaintiff on the phone—the details of their conversation are not relevant to Defendant's motion and, thus, need not be made public—the mediation ended without a resolution.

Liebowitz does not dispute that he and his client failed to appear in person at the mediation, but he contends that the Mediator gave him advance permission to send an associate in his place and for Plaintiff to appear by telephone. Specifically, at a conference before the Court on November 14, 2019, Liebowitz stated on the record that he had "personally advised" the Mediator "before the mediation" that Plaintiff would not appear in person and that the Mediator had "said that was okay." {It is worth noting that the November 14, 2019 conference was only one day after Liebowitz had appeared before Judge Seibel in connection with the contempt proceedings in Berger, a proceeding in which he was taken to task for lying to the Court.} Several days later, Liebowitz repeated this claim in a sworn declaration, and further averred that he had obtained the Mediator's permission for Freeman to appear as counsel instead of himself. Liebowitz made the same claims in Plaintiff's opposition to the sanctions motion. As noted, defense counsel disputes these assertions, stating in a declaration currently filed under seal that the Mediator told counsel that the Mediator never gave Liebowitz such permission and that the Mediator would testify to that effect if called as a witness.

The need to resolve this dispute—and to rule on Defendant's motion—justifies a limited inquiry into Liebowitz's communications with the Mediator. Only the Mediator can clarify whether he did, in fact, give Liebowitz advance permission to depart from the Mediation Program's rules, which applied to the mediation by virtue of Local Civil Rule 83.9. These Rules mandate attendance by "[e]ach party"; mandate attendance "by the lawyer who will be primarily responsible for handling the trial of the matter"; and allow a party who "resides more than 100 miles from the Courthouse" for whom in-person appearance "would be a great hardship" to participate by telephone, but only with the permission of the assigned mediator. Shedding light on these issues is critical for determining whether Liebowitz complied with the Court's Orders (which incorporated the Local Rules and the Mediation Rules by reference) and whether Liebowitz was truthful in his representations to the Court—some made under penalty of perjury.

The Court does not call upon the Mediator to involve himself further in this litigation lightly. A mediator should generally not be dragged into litigation beyond the mediation itself—both to protect the confidentiality of mediation communications and (mindful that the lawyers who serve as mediators in this Court's Mediation Program do so on a volunteer basis) to avoid disincentivizing lawyers from serving as mediators. In the unique circumstances of this case, however, it is necessary to call upon the Mediator to provide evidence.

To minimize the burdens on him (and the Mediation Program generally), the Court will carefully limit the evidence required from the Mediator regarding his communications with Liebowitz. Moreover, rather than holding an evidentiary hearing in the first instance, the Court will proceed in steps, beginning with a declaration from the Mediator. In particular, the Mediator shall submit a declaration detailing any and all communications with Liebowitz regarding Liebowitz's personal attendance at the mediation and Plaintiff's participation by telephone in the mediation. The Mediator should specify whether (and if so, when and how) he gave Liebowitz permission (1) not to appear personally at the mediation (and to send an associate instead); and (2) for Plaintiff not to appear at the mediation in person and to appear by telephone instead.

Significantly, limiting the Mediator's disclosures to these issues protects the confidentiality of the information discussed at the mediation itself, which is the primary focus of the rule of confidentiality. That is, the Court's inquiry concerns only a narrow set of communications about procedural matters that occurred before the mediation proper—not communications about the substance of the case or the parties' settlement negotiations. Indeed, although Liebowitz casts aspersions on the conduct and good faith of Defendant and defense counsel during the mediation itself in his opposition papers, the Court will not permit inquiry into such matters. These allegations have no bearing on the veracity of Liebowitz's representations to the Court or the Court's resolution of Defendant's sanctions motion—and impinge more directly on the core of the rule of confidentiality….

Moreover, this case falls squarely within the exceptions to the rule of confidentiality recognized by the Second Circuit …. Liebowitz's representations to the Court in response to Defendant's sanctions motion, including some under penalty of perjury, have created a special need for the confidential material. Failing to discover the limited information necessary to resolve this factual dispute would not only result in unfairness to Defendant, but would also threaten the integrity of the proceedings before the Court and the integrity of the Court-annexed Mediation Program itself. Given the nature of the communications sought and the careful restrictions the Court has drawn, any remaining interest in confidentiality is outweighed by the need for the Mediator's evidence….

There is one more matter impinging on the general rule of confidentiality that the Court must address: whether and to what extent the Mediator's declaration, the transcript of the November 14, 2019 conference, the motion papers filed thus far, and any future filings and proceedings should be made public. "Given the interest in maintaining the confidentiality of negotiations and discussions conducted as part of the Court-annexed Mediation Program," the Court issued an Order on November 20, 2019 that temporarily sealed any filings made in connection with the sanctions motion pending a final determination by the Court and directed the parties to file letters stating "their views on whether and to what extent the motion filings should remain under seal given the strong presumption in favor of public access to judicial documents." Amazingly, Liebowitz did not comply with the Court's Order by filing a letter. Defendant did comply, stating that sealing is not necessary.

For the most part, the Court agrees with Defendant and concludes that the presumption in favor of public access to judicial documents and judicial proceedings requires that the filings and proceedings relating to the sanctions motion should be public. The presumption in favor of public access is especially weighty here, as Defendant has filed a formal motion asking the Court to exercise its coercive authority in the form of sanctions.

In addition, the public has a strong interest in knowing about the additional aspersions cast on Liebowitz's truthfulness. Following the Court's warning to "be very, very, very careful" about any representations made to the Court, Liebowitz repeatedly asserted—both in person and in filings—that his and his client's absences from the mediation were justified because he had received permission in advance. The public—including other litigants—and other judges who may come into contact with Liebowitz, a frequent litigant in this District, have an interest in the Court's determination of the veracity of these representations.

By contrast, the considerations cutting against public access here are generally weak. As discussed, the interest in confidentiality with respect to the communications that are relevant to the Court's inquiry is limited. The parties have also expressed no objections to unsealing. Nevertheless, the Court concludes that some redactions are warranted to preserve the confidentiality of substantive mediation discussions and the integrity of the Mediation Program. Specifically, the allegations made in the parties' submissions about the parties' conduct at the mediation proper—and, in particular, the content of their negotiations—shall be redacted, as they have no bearing on the sanctions motion and directly implicate the core purpose of the rule of confidentiality. The same is true of the identities of the Mediator and court employees working in the Court-annexed Mediation Program, which shall also be redacted to protect their privacy. The Court finds that the presumption in favor of public access is much weaker as to those portions of the motion papers, and the countervailing interests are stronger….

The Director of the Court-annexed Mediation Program is directed to provide a copy of this Memorandum Opinion and Order to the Mediator, who shall submit a declaration, consistent with the directions above, by December 18, 2019…. Upon review of the Mediator's declaration, the Court will decide what, if any, further proceedings are necessary to resolve Defendant's motion.

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  1. Having read a ton on Liebowitz’s antics, I am left with the impression that the legal system does not care to discipline itself. What do you have to do to be disbarred, thrown out, thrown in jail? Punch a judge? This reflects poorly on the entire profession.

    1. What do you have to do to be disbarred, thrown out, thrown in jail?

      Be a Republican, or represent one. Next question?

      1. I’d love to hear more about lawyers who have been disbarred or jailed because they were Republican or represented a Republican.

    2. Stealing money from a client is one of the few ways to guarantee disbarment. Being convicted of a felony, sure. But misconduct in the course of litigation is a tougher row to hoe. Courts are very reluctant to sanction, let alone disbar, attorneys.

      1. To be clear, disbarment and sanctions are different processes by different actors. Individual judges do the latter; the attorney regulatory system does the former.

        1. I can’t speak to elsewhere, but in Wisconsin, the latter is handled by the state Supreme court, up to and including revoking a lawyer’s law license.

          1. It varies from state to state how it works, but the courts will generally have final say, but that’s at the end of a long process. I was really trying to distinguish between a judge in a case, who issues sanctions but doesn’t handle the overall disciplinary process.

            1. To me, our inability to police unethical, dishonest lawyers is the great shame of our profession. I would of course never minimize client trust account violations- they are terrible- but the notion that this is basically almost the ONLY thing that gets you disbarred (and that’s true in California) is horrible. And it’s one reason why the public hates lawyers so much.

              And something that makes it worse- we purport to check people’s moral character before admitting them. So California made a big show of not admitting Stephen Glass, an apparently reformed fabulist writer who was famous enough to inspire a movie, to practice law. Meanwhile I can personally name 50 lawyers in Southern California who have worse ethics than Glass.

              1. Presumably (as with the Blue Wall of Silence) there is no one and no group with both capability and incentive to significantly reduce the current level of corruption. Are there even broad systematic attempts to track it?

              2. Well, I can name one that sends frivolous C&D letters on behalf of the thug in the White House.

  2. It seems (both from stories like this and from my own experiences as both a litigant and a paralegal) that the legal system is exceedingly reluctant to punish even willful bad conduct by its members. When I was involved in a long-running legal drama around adopting my foster daughter, there weren’t even negative consequences to the other parties for testimony that was demonstrated – by documentary evidence admitted at the same hearing – to be perjured. It’s a terrible trend, and it hugely undermines public trust in the ability of ordinary people to be treated fairly and to obtain justice. Why does the legal system tolerate even such obvious and blatant patterns of misconduct by its members? How bad does a lawyer’s behavior have to get to produce real sanction?

    1. There’s only one crime that is unforgivable in the religion of Law: commingling of funds. Dishonesty, perjury, suborning perjury, withholding evidence – those are all legitimate parts of the ritual of Law. Ask any prosecutor.

      1. Someone told me that the other big cause of disbarment (at least in NY) is the backdating of notarizations by lawyers acting as notaries.

    2. I believe that he was fined quite a bit of money. It was $500 at the close of October and at least two business days would have passed between the November 6th raise to $500/day and the November 14th dressing-down.

      I’m not sure how she calculated business days, really. He was supposed to be fined $100/day for pretty much every business day in October but that only came to $500 somehow.

      1. Common Core math and the legal profession have many similarities.
        Like a 15 minute phone call takes at least and hour, and so forth.

  3. The judge’s concerns about mediation confidentiality seem overblown. The mediator is not being asked about the substance of the mediation or the mediation discussions. He is being asked about the procedure — which lawyer would represent one side, and would he and his client have to appear in person or by phone. Those routines things do not strike me as having major confidentiality concerns.

    Consider discussions between a client and a lawyer. Their substance is privileged. But the mechanics rarely are. “I spoke to my lawyer on the phone on 10 am on Tuesday” or “I spoke to my lawyer at her office at 2 pm on Thursday” hardly seem the stuff of privilege.

    1. The opinion covered that:

      “the Court’s inquiry concerns only a narrow set of communications about procedural matters that occurred before the mediation proper”

      “the interest in confidentiality with respect to [such] communications … is limited”

      Did you read those parts of the opinion?

  4. This guy Liebowitz is a real piece of work. Maybe cooling his heels for a month behind bars will reduce the legal antics.

    1. Lots of cannons of ethics are in play, but I don’t know if perjury can be proven.

      Also curious about whether you consider yourself a libertarian. Not even my statist self is into endorsing the benefits of state force on jerks.

      1. Sarcastr0, let me answer you this way. From my perspective, this guy is a major league pain in the ass for the Second Circuit. Now when I was growing up, one value taught to me; never, ever, ever screw with the judge. First, because s/he wears the robe and is worthy of a lot of respect; and second, because s/he can deprive you of your liberty just on their say so. Nevermind the perjury aspect, just the contempt for the Court expressed through his behavior is worthy of a trip to jail for a period of time.

        So….I think respect for the law and the arbiters of it, is as libertarian as it gets.

      2. I’m pretty sure in the other case he filed false affidavits about a death in his family to excuse him missing a court date. That is perjury.

        1. But as I recall the outcome was dispointing – the dates were only somewhat off (though very conveniently so). Proving the intent would be hard.

          I want to nail the sonuvabitch as much of y’all – he is an unmitigated blight on the system. But disbarment is right there; no need to go all retributive incarceration.

          1. See, now that is taking away his livelihood = disbarment. Right? No, I don’t want that. What I want is this Liebowitz guy to have a major league pain in his ass for about a month, courtesy of an irate judge, so he behaves himself in the Second Circuit.

          2. But as I recall the outcome was dispointing – the dates were only somewhat off (though very conveniently so). Proving the intent would be hard.

            You’re not remembering the facts. Without any notice, he skipped a discovery conference (probably, though it’s just an inference, because he was going to be slapped down hard at said conference for discovery abuses). He claimed that it was because his family member had died that day, and he had to make funeral arrangements before the Sabbath. They held the conference by phone a short time later, and the defendants pointed out other aspects of the case where his credibility was in question. So the judge asked him for evidence of the death, and he refused to prove it for months, defying repeated court orders, but repeatedly swore it was true. When the choice was to prove it or go to jail, he finally fessed up and showed that the person hadn’t died that day, but days earlier, and that the funeral had already been held.

            We’re not talking about someone years later getting dates off by a few days. We’re talking about someone days later claiming that he missed a court conference because he was at a funeral that had actually happened days before the court conference.

      3. Also curious about whether you consider yourself a libertarian. Not even my statist self is into endorsing the benefits of state force on jerks.

        That appeal to libertarianism ignores the fact that each of his acts of wrongdoing occur in service of him invoking the specter of state force against other people.

  5. A lawyer lying? The devil you say!

  6. One ought to read Hervey Cleckley’s The Mask of Sanity to be able to make sense of this guy.

  7. On the one hand, you would really hope that in addition to massive sanctions, there would be disciplinary proceedings leading to disbarment for this guy. Unfortunately, as others have noted, the only thing that generally guarantees disciplinary action (other than a felony conviction) is some sort of client trust account violation.

    Which is why you see so many terribly unethical lawyers at times; simply because they know that they can get away with it. In addition, despite the ethical admonition and requirement to report violation, most attorneys won’t- both because they know that it won’t do any good, and because they also don’t want to get involved in the process (which will often devolve into counter-charges, etc.).

    It gets to the point where, recently, I was absolutely shocked when I learned that a prosecutor had been suspended for a year (!!!) for an egregious and knowing Brady violation that the prosecutor lied to the court about. It made me incredibly happy, because it needed to be done, but I had my money on, at most, a censure.

  8. Stealing money from a client is one of the few ways to guarantee disbarment. click here for the best Instagram Summer Captions

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