In the Matter of Rosenberg ( 2023 )

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SJC-13293
IN THE MATTER OF ERWIN ROSENBERG.
February 23, 2023.
Attorney at Law, Reciprocal discipline, Disbarment.
Constitutional Law, Freedom of speech and press.
The respondent attorney, Erwin Rosenberg, was permanently
disbarred from the practice of law by the Florida Supreme Court
in 2017. Upon learning of the Florida disbarment in 2021, bar
counsel filed a petition for reciprocal discipline in the
Commonwealth, pursuant to S.J.C. Rule 4:01, § 16, as appearing
in 425 Mass. 1319 (1997). After a hearing, a single justice of
this court entered an order disbarring the respondent from the
practice of law in the Commonwealth. The respondent appeals,
arguing principally that the Commonwealth's attorney licensing
scheme violates the First Amendment to the United States
Constitution. We affirm.
1. Background.1 In May 2015, the respondent was suspended
from the practice of law in Florida for one year, with
reinstatement dependent on certain conditions.2 See Florida Bar
1 Because this is a reciprocal discipline matter and the
respondent does not challenge the fairness of the underlying
disciplinary proceedings in this appeal, we rely on the factual
findings from the jurisdiction in which discipline was imposed.
See Matter of Watt, 430 Mass. 232, 233 n.2 (1999). See also
S.J.C. Rule 4:01, § 16 (3).
2 The respondent's reinstatement in Florida was conditioned
on him paying the monetary sanctions imposed upon him and
"addressing whatever underlying psychological or emotional
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v. Rosenberg, 169 So. 3d 1155, 1162-1163 (Fla. 2015). That
suspension stemmed from the respondent's misconduct in the
course of his representation of corporate clients involved in a
civil suit. Over the course of a year, the respondent
repeatedly and willfully failed to comply with discovery
requests and court orders concerning his clients, instead
seeking to relitigate settled court rulings. The trial court
eventually held an evidentiary hearing concerning the
respondent's behavior, and ultimately found that the
respondent's actions amounted to "the very definition of bad
faith conduct." A judge ordered him to pay attorney's fees as a
monetary sanction. See Rosenberg v. Gaballa, 1 So. 3d 1149,
1150 (Fla. Dist. Ct. App. 2009) (affirming sanctions on appeal).
The respondent did not pay the attorney's fees, and disciplinary
proceedings were eventually initiated against him.
The Florida Supreme Court concluded that the respondent's
misconduct constituted violations of the rules regulating the
Florida bar, including rule 4-1.1 (lawyer shall provide
competent representation to client); rule 4-3.4(d) (lawyer must
not, in pretrial procedure, intentionally fail to comply with
legally proper discovery request by opposing party); and rule 4-
8.4(d) (lawyer shall not engage in conduct in connection with
practice of law that is prejudicial to administration of
justice). The court determined that a one-year suspension was
warranted in light of numerous aggravating factors, including
the respondent's continued refusal to acknowledge any
wrongdoing, as well as his failure to pay any portion of the
monetary sanctions that had been imposed upon him.
Additionally, the court noted that both the judge who had issued
the sanctions and the referee who had presided over the
disciplinary proceedings expressed concerns as to the
respondent's fitness to practice law. The court further
observed that the respondent had continued to engage in abusive
litigation practices in the course of the disciplinary
proceedings, filing numerous frivolous and procedurally improper
motions.
During the one-year suspension period, the Florida bar
filed a petition for contempt and an order to show cause,
alleging that the respondent had continued to practice law in
disregard of his suspension. The respondent failed to file a
response, and in April 2016, the Florida Supreme Court held the
respondent in contempt and ordered that he be disbarred as a
issues may exist which appear to interfere with his ability to
objectively evaluate facts, precedents, and court orders."
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sanction; under Florida's disciplinary rules, the respondent
would have become eligible to apply for readmission to the
Florida bar after five years. See Fla. Bar Admiss. R. 2-13.1.
However, the Florida bar subsequently filed a second petition
for contempt and an order to show cause, alleging that the
respondent had continued to engage in the practice of law even
after his disbarment. The petition cited multiple cases in
which the respondent had continued to file motions before courts
in Florida. The Florida bar further noted that the respondent's
motions advanced arguments that his disbarment violated his
First Amendment right to engage in "litigation-related speech."
As before, the respondent failed to file a response to the
allegations contained in the Florida bar's second petition for
contempt. In September 2017, the Florida Supreme Court held the
respondent in contempt and ordered that he be permanently
disbarred from the practice of law in Florida.
The respondent failed to notify bar counsel of the
professional discipline imposed in Florida within ten days, as
is required by S.J.C. Rule 4:01, § 16 (6). It was not until
several years later, in January 2021, that the respondent
notified the general counsel to the Board of Bar Overseers of
his disbarment in Florida. Thereafter, bar counsel filed a
petition for reciprocal discipline in the county court. The
respondent, who represented himself, moved to dismiss the
petition, and he filed upwards of thirty other motions seeking
various forms of relief before the single justice. In December
2021, the single justice issued an order disbarring the
respondent from the practice of law in Massachusetts. In June
2022, the respondent was permitted to file a late notice of
appeal.
2. Discussion. a. First Amendment argument. On appeal,
the respondent does not challenge either the misconduct
established in Florida or the procedure through which it was
imposed. See S.J.C. Rule 4:01, § 16 (3), (5). He argues
instead that, as a general matter, rules of professional
responsibility serve as content-based restrictions on speech, in
violation of the First Amendment. The single justice correctly
rejected the argument. It is established that "States may
regulate professional conduct, even though that conduct
incidentally involves speech." National Inst. of Family & Life
Advocates v. Becerra, 138 S. Ct. 2361, 2372 (2018). This
permits the regulation of speech "as part of the practice of
[the law], subject to reasonable licensing and regulation by the
State" (emphasis in original). Id. at 2373, quoting Planned
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Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 884
(1992). Indeed, an attorney's conduct during the pendency of a
case may be subject to "ethical restrictions on speech to which
an ordinary citizen would not be." Gentile v. State Bar of
Nev., 501 U.S. 1030, 1071 (1991). See Matter of Cobb, 445 Mass.
452, 467-468 (2005). Further, "[i]t is unquestionable that in
the courtroom itself, during a judicial proceeding, whatever
right to 'free speech' an attorney has is extremely
circumscribed. An attorney may not, by speech or other conduct,
resist a ruling of the trial court beyond the point necessary to
preserve a claim for appeal." Gentile, supra. Thus, we agree
with the single justice that the respondent's First Amendment
argument lacks merit.
b. Propriety of sanction. In matters of reciprocal
discipline, we review the propriety of the sanction de novo.
Matter of Kersey, 444 Mass. 65, 70 (2005). We may adopt the
disciplinary action taken by the foreign jurisdiction "unless,
among other considerations not relevant here, 'the misconduct
established does not justify the same discipline in this
Commonwealth.'" Matter of Sheridan, 449 Mass. 1005, 1007–1008
(2007), quoting S.J.C. Rule 4:01, § 16 (3). In other words, we
assess whether "the discipline imposed by the single justice is
. . . markedly disparate from that ordered in comparable cases."
Matter of Kersey, supra.As the single justice recognized, an attorney's willful,
repeated noncompliance with court orders and failure to comply
with discovery obligations typically results in a term
suspension. See, e.g., Matter of Kersey, 444 Mass. at 70;
Matter of Ring, 427 Mass. 186, 192 (1998), and sources cited
("The appropriate discipline for such knowing violations of
court orders, violations which . . . interfered with a legal
proceeding, is a suspension"). The respondent initially was
disciplined in that manner in Florida. Subsequently, however,
the respondent violated that suspension order, was disciplined
again, and then violated the second disciplinary order. Each
violation constitutes "entirely distinct misconduct." Matter of
Shaughnessy, 446 Mass. 1013, 1013 (2006), S.C., 456 Mass. 1021(2010).
Most egregious among the respondent's misconduct was his
continued engagement in the unauthorized practice of law after
his initial Florida disbarment. "There can be no question that
the judgment of disbarment contains a clear and unequivocal
command against practicing law." Matter of Shanahan, 26 Mass.
Att'y Discipline Rep. 582, 588 (2010). The unauthorized
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practice of law by a disbarred attorney is itself "sufficient
basis for a judgment of disbarment." Matter of McInerney, 389
Mass. 528, 536 n.11 (1983). Here, the respondent's misconduct
is further aggravated by his abject refusal to appreciate the
wrongful nature of his behavior. See Matter of Bailey, 439
Mass. 134, 152 (2003), and cases cited. Indeed, he appeared to
be unwilling to pay the monetary sanctions imposed upon him for
his discovery-related misconduct, even years after the order of
sanctions had been affirmed on appeal. At the same time, no
special mitigating circumstances are present in this case. See
Matter of Dawkins, 412 Mass. 90, 96 (1992) (lack of prior
disciplinary history not considered special mitigating factor).
In these circumstances, we conclude that the reciprocal
discipline of disbarment imposed by the single justice was
appropriate. See Matter of Lambert, 18 Mass. Att'y Discipline
Rep. 357, 357 (2002) (imposing order of contempt and judgment of
disbarment in response to attorney's failure to comply with
order of indefinite suspension); Matter of Veysey, 26 Mass.
Att'y Discipline Rep. 701, 703 (2010) (entering judgment of
disbarment against attorney who had been administratively
suspended for failing to cooperate with bar counsel's
investigation of underlying misconduct, where attorney failed to
comply with administrative suspension order and then failed to
comply with resulting contempt order).
3. Conclusion. For the foregoing reasons, we affirm the
judgment of the single justice disbarring the respondent from
the practice of law.
Judgment affirmed.
The case was submitted on the record, accompanied by a
memorandum of law.
Erwin Rosenberg, pro se.