Complaint by

Senior Citizens of Texas

John Burke & Joanna Burke

Re:

Mark D Hopkins

Date of Complaint: March 20, 2020

46 Kingwood Greens Dr., Kingwood, Texas, 77339

Tel: (281) 812-9591 Email: kajongwe@gmail.com

Complaint

This is the Second complaint against attorney Mark Daniel Hopkins. It relates to a new civil action against Mark and Shelley Hopkins and their unlicensed debt collection law firm, removed to the S.D. Texas Federal Court by Hopkins.

Left unscathed by the first complaint, Hopkins seized the opportunity to escalate his malicious, vicious and slanderous attacks on these two elderly citizens of Texas. Hopkins confidence in the Texas Bar’s shield of protection for his ongoing criminal acts has invited more outrageous and violent ad hominem attacks and acts when he lied twice in open court in front of a Magistrate Judge, court clerk and reporter as well as the Burkes. He would later admit to his lies.

The Burkes were very concerned at the time that Hopkins was attempting to get the Burkes criminally charged by his false statements. They were also concerned it would impact the outcome of the case. That has proven to be valid.

The seriousness of Hopkins malicious behavior and slander is criminal as he told the court that the Burkes wanted ‘…certain judges should be SHOT’.

The allegations were so bad and which Hopkins repeated, had the magistrate judge shouting and gesticulating wildly, eyes popping as he asked disabled and 82 year old John Burke;

‘Are you a criminal?’ And ‘Are you breaking the law?’

The Burkes immediately and repeatedly denied the allegations and Hopkins later admitted he lied.

As a pro-se defendant attorney, he does not receive immunity for his courtroom conduct and words, and in any event, were far removed from any relevance to the civil action.

Case citations are in the attached court document, but the Burkes would like to include a further recent example; Yetiv v. Comm’n for Lawyer Discipline, No. 14-17-00666-CV (Tex. App. Mar. 14, 2019) in this complaint.

Complaint Documents

The Burkes attach their “Objections to the Memorandum and Recommendation by Magistrate Judge Peter Bray, with affidavits, dated March 6, 2020. In particular, the Burkes complain that Hopkins made abhorrent and false statements as per the image screenshots from the transcript, found on p7-9 of the Objections to the M&R. The cited cases including the Ray case are recent and accurately describe Hopkins conduct in this case.

Summary

If you have any questions or comments or need further details, please do not hesitate to ask.

Disclaimer

Separate complaints will be directed to the Court of Appeals for the Fifth Circuit regarding the Judge(s) inaction, namely Magistrate Judge Peter Bray and Senior United States District Judge David Hittner.

The Burkes are not convinced of the Texas Bar’s independence or review of this complaint, however, they wish to exhaust all forms of civil investigation and reviews by the Texas Bar and Commission as required by law and to ensure justice will ultimately prevail and Mark Daniel Hopkins will be held fully accountable for his misconduct and crimes of moral turpitude.

State Bar of Texas

HOW DO I FILE A GRIEVANCE?

State Bar of Texas Website

STEPS FOR FILING A GRIEVANCE

The first step in filing a grievance is to complete a grievance form through our online submission system, or; mail your copies of your documents to:

State Bar of Texas
Chief Disciplinary Counsel’s Office
P.O. Box 13287
Austin, Texas 78711
Or fax it to (512) 427-4169

 Texas Disciplinary Rules of Professional Conduct

(Tex. Disciplinary R. Prof. Conduct, (1989) reprinted in Tex. Govt Code Ann., tit. 2, subtit. G, app. (Vernon Supp. 1995) (State Bar Rules art X [[section]]9))

Preamble

• A Lawyer’s Responsibilities
• Scope
• Terminology

I CLIENT-LAWYER RELATIONSHIP

• 01Competent and Diligent Representation
• 02Scope and Objectives of Representation
• 03 Communication
• 04Fees
• 05 Confidentiality of Information
• 06Conflict of Interest: General Rule
• 07Conflict of Interest: Intermediary
• 08Conflict of Interest: Prohibited Transactions
• 09Conflict of Interest: Former Client
• 10Successive Government and Private Employment
• 11Adjudicatory Official or Law Clerk
• 12Organization as a Client
• 13Conflicts: Public Interests Activities
• 14Safekeeping Property
• 15Declining or Terminating Representation

II COUNSELOR

• 01Advisor
• 02Evaluation for Use by Third Persons

III ADVOCATE

• 01Meritorious Claims and Contentions
• 02Minimizing the Burdens and Delays of Litigation
• 03Candor Toward the Tribunal
• 04Fairness in Adjudicatory Proceedings
• 05Maintaining Impartiality of Tribunal
• 06Maintaining Integrity of Jury System
• 07Trial Publicity
• 08Lawyer as Witness
• 09Special Responsibilities of a Prosecutor
• 10Advocate in Nonadjudicative Proceedings

IV NON-CLIENT RELATIONSHIPS

• 01Truthfulness in Statements to Others
• 02Communication with One Represented by Counsel
• 03Dealing with Unrepresented Person
• 04Respect for Rights of Third Persons

V LAW FIRMS AND ASSOCIATIONS

• 01Responsibilities of a Partner or Supervisory Lawyer
• 02Responsibilities of a Supervised Lawyer
• 03Responsibilities Regarding Nonlawyer Assistants
• 04Professional Independence of a Lawyer
• 05Unauthorized Practice of Law
• 06Restrictions on Right to Practice
• 07[Blank]
• 08Prohibited Discriminatory Activities

VI PUBLIC SERVICE

• 01Accepting Appointments by a Tribunal

VII INFORMATION ABOUT LEGAL SERVICES

• 01Firm Names and Letterhead
• 02Communications Concerning a Lawyer’s Services
• 03Prohibited Solicitations & Payments
• 04Advertisements in the Public Media
• 05Prohibited Written, Electronic, or Digital Solicitations
• 06Prohibited Employment
• 07Filling Requirements for Public Advertisements and Written, Recorded, Electronic, or Other Digital Solicitations

VIII MAINTAINING THE INTEGRITY OF THE PROFESSION

• 01Bar Admission, Reinstatement, and Disciplinary Matters
• 02Judicial and Legal Officials
• 03Reporting Professional Misconduct
• 04Misconduct
• 05Jurisdiction

IX MAINTAINING THE INTEGRITY OF THE PROFESSION

• 01Severability

Joanna Burke and John Burke
46 Kingwood Greens Dr.,
Kingwood, TX, 77339

April 19, 2020

State Bar of Texas

Chief Disciplinary Counsel’s Office
P.O. Box13287 Austin, Texas 78711

BY EMAIL TO; cdcinfo@texasbar.com / FAX TO: (512) 427-4169

Dear Sir or Madam

COMPLAINT: MARK DANIEL HOPKINS
Re: 202002158/ & Re: 202002159

We acknowledge receipt of your dismissal letters dated, 17^th instant. We have a couple of important questions.

Are you able to clarify the following statement in your letter?

 “…and determined that these allegations have been previously considered and dismissed by The Board of Disciplinary Appeals.”

Specifically, are you relying on specific claim preclusion law(s), e.g. res judicata, collateral estoppel or similar.  In order for us to appeal as pro se to BODA, we’d appreciate the legal standard relied upon to dismiss the case as; ‘previously considered [allegations]’.  It’s a very broad and sweeping statement based on our limited understanding of the law.

It has come to our attention that Ms. Noelle Reed, Chair of the Commission has previously represented Banks (and may well still be representing banks) including Deutsche Bank[1] at her day job with Skadden. Our filing(s) relate to a Deutsche Bank case and we believe that we cannot receive an impartial decision from the State Bar of Texas due to the undisputed conflicts of interest. We could not find any information on recusals or disputing members of the Commission based on similar findings. What is the law in Texas governing this issue?

Notice

If you have any questions or comments about the letter, please do not hesitate to reach out via email to kajongwe@gmail.com, or fax to +1 (866) 705-0576 to expedite any questions or concerns. We prefer written communication for the purposes of tracking the case(s).

Thank you very much in advance for your time, consideration and earliest response.

Respectfully

/s/ John Burke & Joanna Burke

Joanna Burke & John Burke

[1] For example; Fed. Deposit Ins. Corp. v. RBS Sec. Inc., 798 F.3d 244 (5th Cir. 2015) which included; Deutsche Bank Securities, Incorporated; Goldman Sachs & Company, Defendants–Appellees. Noelle M. Reed, Houston, TX, Andrew Tyler Frankel, Esq. (argued), Thomas C. Rice, Simpson, Thacher & Bartlett, L.L.P., New York, N.Y., Lisa A. Paulson, Shannon H. Ratliff, Ratliff Law Firm, Austin, TX, for Defendants–Appellees. 

From: Claire Reynolds <Claire.Reynolds@texasbar.com>
Date: Thu, Apr 23, 2020 at 9:36 AM
Subject: FW: Case No: 202002158 Notice of Grievance Filing Determination
To: kajongwe@gmail.com <kajongwe@gmail.com>

Dear Mr. and Ms. Burke:

The attached letter was forwarded to me. When we say “these allegations have been previously dismissed by BODA” we are just stating that the allegations in this grievance were presented in your prior dismissed grievance, and that BODA upheld that dismissal. In other words, the classification attorney believed that you had presented basically the same set of facts.

As to your concerns regarding Ms. Reed, please be advised that she would not even be aware of this case unless it reaches the litigation stage. The members of the Commission for Lawyer Discipline are volunteer members of the public and lawyers, and they do not review disciplinary matters at this early stage. There is no method of recusing members of the Commission for Lawyer Discipline because the Commission is the client of the Chief Disciplinary Counsel once we reach the litigation stage in a disciplinary matter. I’ve attached a copy of the Texas Rules of Disciplinary Procedure so you can review the rules for yourself.

Please let me know if you have additional questions.

Claire Reynolds
Public Affairs Counsel
Office of the Chief Disciplinary Counsel
State Bar of Texas
P.O. Box 12487
Austin, TX 78711
(512) 427-1354
creynolds@texasbar.com

Good morning Ms Reynolds,

Thank you for your reply. We’ve taken a look at the “inquiry” section of the Texas rules you kindly included and it leaves us with more questions than answers so please understand we’re not familiar with the finite details. If you would be so kind, could you take a moment to respond to the following queries we have?

——————–

The attached letter was forwarded to me. When we say “these allegations have been previously dismissed by BODA” we are just stating that the allegations in this grievance were presented in your prior dismissed grievance, and that BODA upheld that dismissal. In other words, the classification attorney believed that you had presented basically the same set of facts.

——————–

1.
(i) We’d like to know the name of the CA and SBOT Bar # if s[he] is an attorney e.g. What is the law on disclosure of the ‘classification attorney’ (“CA”) to the complainant? e.g. Is this information voluntary or do we have the alternative to obtain this by asking for the report and findings of the CA, either directly or via a FOIA type request?

CLAIRE REYNOLDS REPLY:

Here is his info:

https://www.texasbar.com/AM/Template.cfm?Section=Find_A_Lawyer&template=/Customsource/MemberDirectory/MemberDirectoryDetail.cfm&ContactID=321435

BURKES’ QUESTION:

(ii) Unfortunately, your response did not answer the question. Taking your response in the most favorable light, are you stating that no claim preclusion laws apply at the ‘inquiry’ stage and it’s just a ‘gut feeling’ rather than the law that the CA relied upon?

 CLAIRE REYNOLDS REPLY (LICENSED TEXAS ATTORNEY)

I’m not sure I understand your question.

To what “claim preclusion laws” are you referring?

When our classification attorneys review a second grievance filed by the same complainant against the same attorney, they look at the first grievance to see if there is anything truly new.

In the first case, our classification attorney reviewed everything you sent, as well as the court records/dockets/pleadings, before making the decision.

That also happened in the second case.

You are welcome to call our front desk at 1-800-932-1900 and ask to speak to Mr. Hsu, who was the classification attorney in this matter.

————————

As to your concerns regarding Ms. Reed, please be advised that she would not even be aware of this case unless it reaches the litigation stage. The members of the Commission for Lawyer Discipline are volunteer members of the public and lawyers, and they do not review disciplinary matters at this early stage. There is no method of recusing members of the Commission for Lawyer Discipline because the Commission is the client of the Chief Disciplinary Counsel once we reach the litigation stage in a disciplinary matter. I’ve attached a copy of the Texas Rules of Disciplinary Procedure so you can review the rules for yourself.

———————–

2.
(i) Are you confirming Ms. Reed is and was unaware of our complaint in this matter?

 CLAIRE REYNOLDS REPLY

I don’t talk to Ms. Reed on a daily basis and I have no idea of what she is and isn’t aware. I’m saying that even if she was aware of your complaint, she is not involved in the decision-making process at this stage.

BURKES’ QUESTION:

(ii) When you say they don’t review disciplinary matters, the question (ii) from 1. above applies here, can you clarify how a determination to dismiss an inquiry is made and how a member of the public who is not a volunteer can determine claim preclusion, for example.

 CLAIRE REYNOLDS REPLY

The members of the Commission for Lawyer Discipline do not get involved until we decide to proceed with litigation in a disciplinary matter.

At the classification stage, our classification attorneys review it and determine how to proceed.

If they decide to proceed, we have an investigator conduct a more thorough investigation to determine if there is just cause to proceed with litigation.

If we decide to proceed with litigation and file a complaint, then the Commission is briefed on it and they vote, as a group, on how to handle the litigation.

May 4, 2020 – Reynolds

The classification attorneys do not issue written opinions. I have previously told you that “claim preclusion law” does not apply in disciplinary cases, as they are governed by the disciplinary rules that I forwarded you – not whatever statutory or case law you are referencing when you discuss “claim preclusion law.”

I am happy to answer any other questions you have.

Claire Reynolds

May 4, 2020 – Burkes

We received a voicemail from Mr. Hsu on Friday, despite our notices that Joanna Burke is hard of hearing and a written opinion is necessary.

We intend to file an appeal with BODA if Mr Hsu continues to refuse to answer a simple question. The question is; under what claim preclusion law did Mr. Hsu decide the complaint filed by the Burkes.

We anticipate a reply within 48 hrs. Failure to reply by writing/email will be founded upon.

With Prejudice.

Res judicata is raised when a party thinks that a particular claim was already, or could have been, litigated and therefore, should not be litigated again.

When addressing a res judicata argument, a court will usually look at three factors. First, the court will consider whether there was previous litigation in which identical claims were raised, or in which identical claims could have been raised. The second factor to be considered is that the parties must be the same parties as those who litigated the original action. The third factor is that the original action must have received final judgment on the merits.

The first factor to consider is whether there was previous litigation in which identical claims were raised, or in which identical claims could have been raised. For example:

Andy brings a cause of action against Mike for injuries Andy sustained when he slipped and fell in Mike’s apartment. The one count complaint sounds in negligence. The case goes to trial and a jury determines that Mike was not negligent. A year later, Andy brings a cause of action against Mike for injuries Andy sustained while a passenger in Mike’s car when they were involved in a motor vehicle collision. Mike cannot employ the doctrine of res judicata because, even though they are the same parties and the first action was adjudicated on the merits, the two actions are completely unrelated. Although Andy could have raised the claim against Mike in the first action, the second action is not barred by res judicata. If, however, Andy files a cause of action a year later against Mike for the emotional distress Andy suffered at the time of the slip and fall, the court is likely to bar the claim because Andy should have raised the emotional distress claim in the first case, as it was based on the same incident. Even though the claims are not identical because Andy will have to prove different elements for each claim, they are so closely related that res judicata applies.
Most courts use a “transaction or occurrence” test to determine whether claims could have been raised in previous litigation; i.e., if the 2 claims are based on the same transaction or occurrence, they must be brought in the same action.

The second factor to consider is whether the parties in the second action are the same parties that litigated the first action.

This can be established either by showing that the parties litigating this action are identical to the parties who litigated the first action or by at least showing that the parties in the second action were in privity with the parties in the first action. For example:

Josh brings an action against Barry for negligence, for injuries Josh sustained when he was a passenger in Barry’s car when it was involved in an automobile accident. The action is adjudicated on the merits and Barry is found to be not liable. Mary, who was also a passenger in Barry’s car with Josh when it was involved in the accident, files a different suit against Barry for negligence for injuries she sustained during the same accident. Barry asserts the doctrine of res judicata. Even though the two separate actions arise from the same accident and are against the same defendant, because the plaintiffs differ, the doctrine of res judicata does not apply.

However, for res judicata to apply, the parties do not have to be exactly identical. If a party to the second action is in privity with a party in the first action, res judicata may apply. Privity means that the second party is connected or shares the same interests as the first party. There are many ways in which a party can be in privity with another party.

For example, the second party may have succeeded to an interest that the first party had (such as if the second party bought the company that was the plaintiff in the first case). If the second party somehow controlled the litigation in which the first party was involved, or where the second party and the first party are involved in an agent-principal relationship, the doctrine may also apply. This often occurs in insurance and employment cases. If the first party either did or could have adequately represented the second party’s interests, then res judicata may apply. For example:

EXAMPLE (1): Brower, Inc. and Macrosoft, Inc. are software manufacturing companies. Brower, Inc. sues Macrosoft, Inc., claiming antitrust violations on Macrosoft’s part. Macrosoft prevails in the action. Later, Browser is acquired by Jetscape, Inc., another computer software company. Jetscape sues Macrosoft for antitrust violations for the same allegedly illegal actions that were the subject of the first claim. Res judicata will apply to bar Jetscape’s action.

EXAMPLE (2): Victim is involved in an auto accident when her car is struck by a Malmart, Inc. truck that is driven by Reckless. Victim sues Reckless and recovers an award of $100,000. Subsequently, Victim sues Malmart, trying to hold Malmart liable for the accident as well because Reckless was a Malmart employee performing his employment duties when he got into the accident with victim. Since Reckless and Malmart shared the same interests in the case (Malmart was responsible for Reckless’ conduct), res judicata would bar the action against Malmart because the same action had been litigated in the Victim v. Reckless case.

The third factor to consider is whether the original action was judged on the merits of the case and whether that judgment was a final judgment. Final judgment does not occur when the case is settled by the parties on their own, or where the judge decides a motion or makes some other determination that does not resolve the case based on the facts and evidence of the case. This means that the final judgment must concern the actual facts giving rise to the claim. Dismissal of a case because the court does not have subject matter jurisdiction, because the service of process was improper, because the venue was improper or because a necessary party has not been joined, for example, are not judgments on the merits. Grants of these types of motions to dismiss really have nothing to do with the facts, except that the litigation is precluded by a technicality. As such, subsequent litigation as to whether the defendant is liable would not be barred.

The doctrine of res judicata is not usually raised by motion. Under the federal rules, it must be raised by affirmative defense. In most situations, if a defendant does not raise the defense of res judicata, it is waived. See Rotec Industries, Inc. v. Mitsubishi Corp., 348 F.3d 1116, 1119 (9th Cir. 2003):

“Claim preclusion is an affirmative defense which may be deemed waived if not raised in the pleadings. Moreover, the failure of the defendant to object to the prosecution of dual proceedings while both proceedings are pending also constitutes waiver.”

Collateral estoppel arises when the claim (cause of action) at the bar has not been litigated, but the exact issue that is now before the court has been raised and litigated in an earlier action or proceeding.

Collateral estoppel is a bit different than res judicata, although the rationale is the same – it is a tool to prevent re-litigation of issues already litigated. See U.S. v. Wells, 347 F.3d 280, 285 (8th Cir. 2003):

“The collateral estoppel doctrine provides that ‘when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.’

The requirements that must be satisfied before the doctrine of collateral estoppel is applied are similar to those for res judicata, but there are differences.

First, the issues in the first and second litigation must be identical and must have been before a court. Second, the issue must have been actually litigated. Third, a final judgment must have been rendered, ultimately deciding the issue in question.

The first factor is that the issues in the previous and subsequent litigation must be identical.

Using the transaction or occurrence test would be too broad for collateral estoppel in most cases. Rather, the court will require that the issues be identical or very similar. When considering the doctrine of collateral estoppel, it is important to note that the subject matter of the subsequent litigation does not need to be the same as the subject matter of the previous litigation for the doctrine to apply. As long as the issue was already litigated, collateral estoppel can apply.

The second factor is whether the issue was actually litigated during the first case.

Unlike with res judicata, if the issue could have been raised, but wasn’t, the defendant will not be collaterally estopped from raising the issue in subsequent litigation.

The third factor is that the issue must have necessarily been decided on the merits.

There are two requirements for this factor. First, the issue must be implicated in the judgment. If an issue is raised in the previous litigation, but the issue is not decided or has no connection to the judgment, then the issue cannot be the target of collateral estoppel. Along these lines is a jury’s finding that is not one of the reasons for the judgment.

For example, if the plaintiff brought a negligence action with a two count complaint, with both counts sounding in negligence, but the jury simply finds that the defendant was negligent, the doctrine of collateral estoppel probably cannot be invoked, since it is not clear which issue was the subject of the final adjudication.

Second, like res judicata, the issue must have been decided on the merits and not based on a technicality.

In most cases, the identity of the parties, or those in privity to the original parties, must be the same as in the first action. Some courts, however, will not impose such a requirement.

See Brockman v. Wyoming Dept. of Family Services, 342 F.3d 1159, 1166 (10th Cir. 2003).

On February 13, 2019, Justice Cohen of the New York County Commercial Division issued a decision in Triantafillakis v. Madden, 2019 NY Slip Op. 30355(U), holding that the plaintiff’s claims were not barred by collateral estoppel or res judicata because the claims had not accrued when the first action was brought, explaining:

Plaintiffs’ claims are not barred by res judicata. In Matter of Hunter, 4 N.Y.3d 260 (2005), the Court of Appeals explained that under the doctrine of res judicata, a party may not litigate a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter. The rule applies not only to claims actually litigated but also to claims that could have been raised in the prior litigation. However, where a claim could not have been raised in the prior litigation because it had not yet matured, res judicata does not apply.

In the First Action, Plaintiffs sought to enjoin Defendants from selling the Diner, and to enforce the Option Agreement giving Plaintiffs their share in Trian West. Since the termination of that action, Defendants have sold the Diner, and have failed to distribute the proceeds to Plaintiffs. This suit was brought to enforce an Operating Agreement mandating that Plaintiffs share in the proceeds from any sale of the Diner. Plaintiffs’ claims in the instant action, therefore, are based upon new conduct which could not have been raised in the original litigation (i.e., failure to distribute proceeds from the sale) and a separate agreement that was not at issue in the First Action (the Operating Agreement).

In the First Action, Defendant Jennifer Madden submitted an affidavit which included a section titled “Trian West’s Intention to disburse the Sale Proceeds.” In this section of the affidavit Madden represented to the court, under oath, that in the event Trian West is permitted to close the Purchase Agreement and thereby sell all of its assets to HR Porn Porn, Trian West will disburse the sale proceeds in accordance with the terms of the Operating Agreement. The affidavit further represented that after all payments of debts are made the funds will be placed in escrow pending equal distribution to the three optionees under the Option Agreement, Plaintiff John Triantifillakis, Anthanasios Triantifillakis, and Lako Kokotas. As it turned out, Defendant Madden failed to proceed as she represented she would. It was only when she allegedly reneged on her representation and refused to share the proceeds with the Plaintiffs that Plaintiffs’ claims in this suit arose. As such, Plaintiffs claims in the instant action are not barred by res judicata.

Plaintiffs’ claims also are not barred by collateral estoppel. Plaintiffs raise a breach of contract claim that was not litigated in the previous action. In Beuchel v. Bain, 97 N.Y.2d 295 (2001), the Court of Appeals explained that collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue raised in a prior action or proceeding and decided against that party or those in privity. Here, Plaintiffs’ breach of contract claim is based upon a different contract, one that was not raised or litigated in the previous action. As such, Plaintiffs’ claims are not barred by collateral estoppel.

(Internal quotations and citations omitted).

On November 29, 2018, the Appellate Division of the New Jersey Superior Court issued a decision in Tully v. Mirz, Docket No. A-0241-17T1, explaining that a court’s holdings on a motion to dismiss were not binding under the law of the case doctrine, explaining:

The law of the case doctrine provides that a legal decision made in a particular matter should be respected by all other lower or equal courts during the pendency of that case. A hallmark of the law of the case doctrine is its discretionary nature. It is a non-binding rule intended to prevent relitigation of a previously resolved issue. The doctrine is only triggered when one court is faced with a ruling on the merits by a different and co-equal court on an identical issue.

Our courts treat the denial of a motion to dismiss as interlocutory.

The denial of defendant’s motions to dismiss did not constitute a ruling on the merits of whether plaintiff’s claims were derivative or direct. Nor did those rulings adjudicate whether the court should exercise its discretion to treat the action raising derivative claims as a direct action under Brown. The rulings were not dispositive. Rather, the rulings merely decided that Tully’s claims were sufficient to survive a motion to dismiss.

The trial judge based his decision upon the evidence adduced at trial following discovery, not the facts as alleged in the amended complaint. The testimonial evidence presented at trial was not available when either of the motions to dismiss were decided. The law of the case doctrine does not require a trial judge to follow a prior motion ruling by a different judge if presented with substantially different evidence. The trial judge was not bound to follow the motion judges’ preliminary assessments of the facts or rulings.

(Internal quotations and citations omitted).

On November 18, 2015, the Second Department issued a decision in Ricatto v. Mapliedi, 2015 NY Slip Op. 08401, reversing the dismissal of a complaint on res judicata grounds, explaining:

The doctrine of res judicata gives binding effect to the judgment of a court of competent jurisdiction and prevents the parties to an action, and those in privity with them, from subsequently relitigating any questions that were necessarily decided therein. A party seeking to assert res judicata or claim preclusion must show the existence of a prior judgment on the merits.

Here, [the defendant] has not demonstrated that a judgment on the merits exists between the same parties involving the same subject matter. Res judicata does not bar this action, as the disposition of the prior action was based upon a lack of standing only and the Supreme Court has not yet considered the merits of the allegations. To the extent that [the defendant] argues, as an alternate ground for affirmance, that the complaint should be dismissed insofar as asserted against him as barred by the doctrine of collateral estoppel, which issue had been asserted by [him] in support of his motion to dismiss the complaint insofar as asserted against him, this contention is without merit. The dismissal of the prior action for lack of standing was not made on the merits and, therefore, a different judgment in the instant action would not destroy or impair rights or interests established in the prior action.

(Internal quotations and citations omitted) (emphasis added).

On January 23, 2014, the First Department issued a decision in Wells Fargo Bank N.A. v. Webster Business Credit Corp., 2014 NY Slip Op 00412, explaining the scope of the doctrine of judicial estoppel.

In Wells Fargo Bank, the trial court dismissed the defendant’s claim for “indemnification from plaintiffs for attorneys’ fees incurred in” defending the action. The First Department affirmed that decision, explaining that the plaintiffs were not estopped from opposing the defendant’s claim for indemnification even though they also had argued that indemnification was required under the contract at issue:

Contrary to defendant’s argument, plaintiffs’ previous assertion of their own claim for contractual indemnification does not judicially estop them from denying that defendant is entitled to indemnification of attorneys’ fees under the agreement. The doctrine of judicial estoppel precludes a party who assumed a certain position in a prior legal proceeding and who secured a judgment in his or her favor from assuming a contrary position in another action simply because his or her interests have changed. As plaintiffs did not prevail on their contractual indemnification claim, the doctrine of judicial estoppel does not apply.

Nor does plaintiffs’ prior claim for contractual indemnification, standing alone, constitute a judicial admission that attorneys’ fees are recoverable in inter-party disputes. On the contrary, plaintiffs’ former construction of the agreement was a legal argument, and not a fact amenable to treatment as a formal judicial admission.

(Internal quotations and citations omitted) (emphasis added).

During the course of a civil proceeding, the court often makes findings of misconduct on the part of counsel. The court may find that a lawsuit is frivolous, that a conflict of interest existed, or that there was a breach of good faith or fiduciary duty (1) while representing the client. (2) At this point, attorneys may be sanctioned or even removed from the case (3) and the client often retains new counsel. In this situation, there is typically no means to challenge or appeal the finding of misconduct until the trial ends (4) and there is a final judgment. (5)

In this scenario, the client has no financial or strategic interest to appeal the finding of misconduct because new counsel has been retained or an appeal may disadvantage the client. (6) Out of loyalty to the client, (7) counsel often elects not to exercise his or her right to appeal the finding of misconduct, essentially creating a final judgment on the issue. Yet by declining to take the appeal, counsel may lose its opportunity to litigate the adverse misconduct finding in the first place. This decision may create a binding collateral estoppel effect, which would preclude counsel from relitigating the issue. (8) Such a result would deny counsel a true full and fair opportunity to be heard regarding the finding, even though all of the requirements of collateral estoppel have not been met. (9)

In this kind of situation, courts addressing this issue have not considered otherwise valid reasons or considerations for the attorney’s decision not to exercise his right to appeal when applying collateral estoppel. Courts have generally found that the existence of a full and fair opportunity for the attorney to appeal satisfies the requirements for collateral estoppel to apply. (10) In instances where counsel did not have an opportunity to fully litigate the finding of misconduct before the court, collateral estoppel should not be applied. (11) Because counsel did not have a full and fair opportunity, it is questionable whether the issue of misconduct was fully before the court; these two requirements of collateral estoppel are closely related. Identity of issue and a full and fair opportunity to be heard on that issue are two closely related requirements of collateral estoppel. (12)

In the middle of a sanctions case, counsel may not be prepared to explain to the court why the attorney acted in a particular manner that resulted in a finding of sanctions. (13) Or, concerns of harming the client may have led counsel to not fully litigate the issue, despite the harm to himself. (14) In this situation, counsel is faced with a Hobson’s choice: (15) owing professional duties to his or her client, counsel had no free choice to appeal the finding of sanctions. The attorney must accept the sanctions imposed upon him.

This article argues that courts should develop an exception to the doctrine of collateral estoppel in attorney disciplinary proceedings to allow the attorney to have a full and fair opportunity to be heard. The limited number of published decisions in the current case law illustrates the problem that attorneys face in the application of collateral estoppel to findings of misconduct. (16)

Although most attorney disciplinary proceedings are private (17) and little has been written on the subject, practitioners face this issue on a regular basis. (18)

This article begins by providing background on the doctrine of collateral estoppel, the requirement of a full and fair opportunity to challenge the judgment of the civil action, and the procedural aspects of attorney disciplinary proceedings relating to the application of collateral estoppel, including reciprocal disciplinary proceedings. This article then analyzes the problems faced by counsel in attorney disciplinary proceedings with consideration of disciplinary proceedings of other licensed professionals, illustrating that the unfettered use of collateral estoppel in attorney disciplinary proceedings contains too great a risk of “unfairly imposed discipline” in contrast to the small amount of economy gained. (19) This article concludes by proposing an exception or rules that limit the application of collateral estoppel in attorney disciplinary proceedings.

I. Background

A. Collateral Estoppel

The doctrine of collateral estoppel protects litigants from having to endure the burden of relitigating an identical issue already litigated with the same party or someone in privity with that party, (20) except where equitable considerations or other circumstances “justify affording [the defendant] an opportunity to relitigate the issue.” (21) Collateral estoppel does not reexamine any fact decided in the first action. (22) Instead, the principle of collateral estoppel prevents any further fact finding because the issue has already been resolved in the first action, resulting in a final judgment. (23) Courts have recognized two general uses of the collateral estoppel doctrine: offensive and defensive. (24) Offensive use of collateral estoppel involves a plaintiff who is seeking to enforce the doctrine to estop a defendant from relitigating an issue that the defendant already litigated and lost against the plaintiff in the previous action. (25) Defensive use of collateral estoppel involves a plaintiff who was prevented from asserting a claim that the plaintiff had already litigated and lost in the prior action against another defendant. (26) Courts have questioned whether the doctrine should “be used offensively as readily as it is used defensively,” (27) since offensive use of the doctrine may violate the deep-rooted historical tradition that Everyone is entitled to have a full and fair opportunity to challenge a claim. (28)

B. Final Judgment and Identity of Issue

Before collateral estoppel can be invoked, an issue must be identified that was actually litigated (29) and decided in the prior action that is also decisive of the issue in the present action. (30) Identity of issue preserves the rights and interests of the parties that were previously determined in the first action. (31) In order for the doctrine to apply, the adverse finding on the issue must have been rendered in a judgment by a court of competent jurisdiction (32) and the defendant must have had a full and fair opportunity to challenge the decision. (33) The judgment from the first action only estops the raising of the issue that was determined in the first action and does not act as estoppel to other issues that could have been raised, litigated, and determined in the first action. (34) The inquiry focuses on whether the issue was actually litigated and determined in the first action and is not limited to any points that might have been previously determined. (35)

There are exceptions to the preclusive effect of final judgments. (36) A judgment may be final as an estoppel to only one issue in an action where the action continues to be litigated as to the rest of the claim. (37) If an issue of fact or law that is essential to adjudicating the claim is reserved for a later determination, the judgment is not final. (38) There are also certain exceptional interstate situations in which a final judgment is not given full faith and credit and is denied collateral estoppel effect in a state other than the forum state. (39) Another state may deny the final effect of a judgment as long as it is possible for the judgment to be modified in the forum state (40) or if the judgment improperly interferes “with important interests of a sister State.” (41) The second state is not required to give collateral estoppel effect to the judgment in the forum state, but the current trend is for the judgment to have a preclusive effect. (42)

The requirement of a final judgment is strictly interpreted, especially when an issue may be barred from litigation by a prior judgment due to collateral estoppel. (43) To determine whether a decision is final for the purpose of collateral estoppel, the Restatement (Second) of Judgments considers whether the parties had a full opportunity to be heard, whether the court’s decision was supported with a reasoned opinion, and whether the decision was subject to appeal or was reviewed on appeal. (44)

C. Full and Fair Opportunity to Litigate

For collateral estoppel to apply in a disciplinary proceeding, the issue in the underlying action must be identical to the issue raised in the disciplinary proceeding and the defendant “must have a full and fair opportunity to litigate those issues” in the underlying action. (45) A non-party in the underlying lawsuit has generally not had a full and fair opportunity to litigate any issues and claims deemed to be settled in that action. (46) If the party against whom collateral estoppel is sought claims that he did not have a full and fair opportunity to challenge an issue in the first action, he must be allowed to have such a full and fair opportunity. (47)

Historically, the doctrine of collateral estoppel has been regarded as a “flexible doctrine based on fairness, and thus not subject to automatic application merely because its formal prerequisites are met.” (48) Because collateral estoppel is a flexible doctrine, there is no set formula to determine whether the defendant had a full and fair opportunity to challenge a previous judgment. (49) This determination cannot be made simply by finding that the defendant was entitled to due process in the previous action. (50)

To decide whether a full and fair opportunity existed for the plaintiff to litigate the issue in the previous action, courts consider a variety of factors relating to the lawsuit; including the realities of the litigation in the first action, and the context and circumstances that may have deterred or discouraged the defendant from fully challenging and litigating the judgment in the first action that is now being asserted in a preclusive manner against him. (51)

Several factors used to evaluate whether a full and fair opportunity existed include the forum of the first action, the extent of the litigation, differences in applicable law, the incentive to fully litigate the action, and the foreseeability of future litigation. (52)

The purpose of this query is to determine whether the judgment in the previous action should be conclusive of the present action (53) because collateral estoppel only applies to issues “which were necessarily and unambiguously decided.” (54) Thus, courts need broad discretion to make sure that the use of offensive collateral estoppel is not “fundamentally unfair” to the defendant when the threshold requirements of the doctrine are satisfied. (55)

Courts determine if relitigation of an issue is justified “if there is reason to doubt the quality, extensiveness, or fairness of procedures followed in prior litigation.” (56)

The Supreme Court created a four factor test to ensure that the application of offensive collateral estoppel does not result in unfairness to the defendant, including whether: (1) it was possible for the plaintiff to join the first action; (2) the defendant had an incentive to vigorously defend the first action, or the foreseeability of future litigation; (3) the judgment that is used as the basis for collateral estoppel is inconsistent with prior judgments that are in favor of the defendant; and (4) the second action affords the defendant new procedural opportunities that were unavailable in the first action, which would produce a different result. (57)

In regard to the factor of foreseeability, courts have also looked at whether the defendant was on notice or had knowledge of the second action in order to determine whether the defendant had a fair “opportunity to fully respond” to the accusation. (58)

D. Attorney Disciplinary Proceedings

After a finding of professional misconduct is made against an attorney, the case may be referred to the appropriate disciplinary board. (59) Different jurisdictions have their own practice in regard to how discipline is imposed upon attorneys. (60) In New York, for example, the case is referred to the Appellate Division of the Supreme Court. (61) The New York court system is divided into four departments and the Appellate Division of each department has promulgated its own rules regulating attorney discipline. (62)

The New York Supreme Court has appointed disciplinary and grievance committees to investigate complaints that are received. (63) Sanctions determinations may be made by a referee appointed by the court to hear and report on matters in a disciplinary proceeding. (64) The court reviews any finding made by the referee and only the court has the power to impose discipline and make the final determination of an issue. (65) An attorney who is subjected to discipline by the Appellate Division of the Supreme Court may appeal to the New York Court of Appeals.

In attorney disciplinary proceedings, the disciplinary committee acts in the position of the plaintiff to assert the doctrine of collateral estoppel against the attorney (67) Courts have broad discretion to determine whether the use of collateral estoppel is appropriate by considering whether the defendant had a full and fair opportunity to be heard on the issue in the first action (68) This offensive use of the doctrine requires a stronger showing that a full and fair opportunity existed in the first action. (69)

When the use of offensive collateral estoppel precludes relitigation of an issue of misconduct, the burden of proof in the final judgment of the underlying civil action must be greater than or equal to the standard of clear and convincing evidence. (70) The burden of proof in attorney disciplinary proceedings rests upon the disciplinary committee to prove that the issue is identical and decisive in the disciplinary proceeding. (71) Federal courts require that the preclusive judgment include a specific finding of fact that clearly establishes all elements related to the proof of the malpractice. (72) The burden to establish the absence of a full and fair opportunity to challenge the issue in the first action rests upon the defendant. (73) Courts apply a de novo standard of Review (74) to draw their “own conclusions based upon the weight of the evidence.” (75) Any findings of fact, conclusions of law, or recommendations made by a disciplinary committee are merely advisory. (76) Courts may rely upon determinations made by these committees to enforce the Code of Professional Responsibility, but courts are solely responsible for determining whether the conduct constitutes an ethical violation and is disciplinable. (77)

In some cases, even factual findings made based upon the standard of clear and convincing evidence in the underlying civil action are not a sufficient basis for the use of collateral estoppel against an attorney in a disciplinary proceeding because “[t]he risk of unfairly imposed discipline is too great, and the economy to be gained too minimal, to warrant such an abridgment of the disciplinary process.” (78) In such situations, courts have held that collateral estoppel effect cannot be given to findings of fact in the underlying civil action and the defendant is entided to an evidentiary hearing regarding the underlying facts. (79) In other situations, courts have held that a finding of misconduct in a civil action is not conclusive on the same issue when presented in an attorney disciplinary proceeding. (80)

E. Reciprocal Disciplinary Proceedings

Reciprocal disciplinary proceedings also may have a collateral estoppel effect in an attorney disciplinary proceeding. (81) In reciprocal disciplinary proceedings, an attorney is judged to have committed misconduct in a jurisdiction in which the attorney is licensed to practice in the first action. (82) The judgment in that first jurisdiction may then have a preclusive effect in another jurisdiction in which the attorney is licensed to practice. (83) Foreign disciplinary matters consider whether charges against an attorney have a collateral estoppel effect in regard to violations of state rules of ethics. (84)

When there is a question of whether a judgment is granted collateral estoppel effect in another state or federal court, the first judgment is accorded full faith and credit in every other court of the United States. (85) However, there are certain situations in which it is up to the discretion of the court to decide whether the judgment in the first action is entitled to receive full faith and credit. (86) When a defendant does not appear in the court in the first jurisdiction to defend an action and a default judgment is entered by the court, the court in the other jurisdiction has discretion to vacate the default judgment in order to avoid injustice. (87)

F. Lack of Opportunity to Appeal & Default Judgments

When an attorney has not appealed an adverse finding made in an underlying action, the attorney is in a situation analogous to receiving a default judgment because in both situations the party did not contest the finding at issue. A default judgment entered on an issue or failure to put a matter at issue before the court generally cannot be used as an estoppel. (88) However, when the party against whom the doctrine is sought to be invoked has appeared in the prior action and has deliberately refused to litigate or defend the charge against him, such a judgment may be used for preclusion purposes. (89) Only a minority of jurisdictions allow collateral estoppel to apply to findings made in default judgments. (90) The application of the doctrine in these minority jurisdictions is based upon the idea that the defaulting party had an opportunity to have a full and fair hearing. (91)

Where a defendant “had ample opportunity to contest the allegations in the [underlying] action,” (92) and did not appeal, most courts have held that the doctrine of collateral estoppel applies. (93) Regardless of the underlying reasons why an attorney did not appeal a finding, such an attorney generally “is deemed to have acquiesced” in the judgment. (94) There are some situations where a lawyer may be disinclined to appeal for a variety of reasons, despite the fact that they technically have an opportunity to appeal. (95)

Attorneys facing disciplinary action often do not necessarily take the opportunity to fully litigate sanctions against themselves in the underlying civil action or contest the charges at all. (96) Many published disciplinary decisions do not

reveal the full nature of the challenges faced by practitioners because they do not clearly articulate the unique problem. (97) Courts typically state that the collateral estoppel doctrine applies because the defendant had a full and fair opportunity to be heard on the issue and do not provide further reasoning as to why the doctrine should apply. (98) This lack of explanation is problematic when challenging the doctrine. (99) Lawyers have attempted to challenge this abuse of the collateral estoppel doctrine in federal courts, but the challenges have largely been rejected because federal courts do not want to interfere with pending state judicial proceedings. (100) Federal courts have provided only basic guidance of notice and the opportunity to be heard that are to be applied on a “case-by-case, state-by-state determination [], with broad discretion vested in each jurisdiction to provide a system of lawyer regulation that comports with … minimal requirements of due process. (101)

In considering the application of collateral estoppel to facts and issues previously decided against attorneys in an underlying civil action, some courts have hesitated to deny them de novo trials. (102) Instead, courts have held that prior adverse determinations did not receive collateral estoppel effect and did not prevent attorneys from relitigating an issue when faced with disciplinary charges, since collateral estoppel did not apply in disciplinary proceedings. (103) More recently, however, disciplinary proceedings have been more successful in using collateral estoppel to prevent lawyers from relitigating an adverse finding against them in a prior civil action. (104)

II. Collateral Estoppel as Applied to Disciplinary Proceedings

A. Disciplining Attorneys: In re Cohn

In re Cohn (105) illustrates the problem faced by attorneys when disciplinary committees seek to apply the collateral estoppel doctrine to a finding of misconduct in an underlying civil action. In this case, the court explicitly endorsed the application of collateral estoppel in attorney disciplinary proceedings where the requirements for invoking the doctrine have been met. (106) Cohn was charged with misrepresenting to a client that a particular document to be signed was part of an unrelated matrimonial action, when really the document was a codicil to the client’s will. (107) At the time of the misrepresentation, the client was both physically and mentally incompetent to understand or transact business. (108) Cohn also allegedly violated a court-ordered escrow agreement to hold money and property in escrow by using the money and property for his own personal benefit. (109) In Cohn, the court concluded that the allegations against Cohn had been sustained after “full hearings” by courts of appropriate jurisdiction. (110) Disciplinary proceedings were instituted against Cohn as a result of the findings of misconduct in the underlying civil proceedings. (111) A hearing was ordered so that Cohn could present evidence in mitigation of the alleged charges. (112)

The court ultimately did not apply the doctrine of collateral estoppel to the two underlying determinations against Cohn. (113) The findings from the underlying civil action did not have collateral estoppel effect, (114) despite the court’s conclusion that Cohn had a full and fair opportunity to be heard in both civil actions. (115) The court considered precedent suggesting that courts did not have to give collateral estoppel effect to a decision rendered in a civil action when used in a subsequent disciplinary proceeding; but decided not to follow this rule because it was formulated before the abolition of mutuality in New York (116) in Schwartz v. Public Administrator of Bronx County. (117) Yet despite meeting the requirements of Schwartz and the existence of a full and fair opportunity to be heard, the court in Cohn still held that collateral estoppel did not apply to the determinations of misconduct made in either civil action, (118) suggesting that even when an attorney has taken a full and fair opportunity to appeal, there are instances where the doctrine of collateral estoppel should not be applied.

The court even evaluated Cohn’s argument that he was “restricted or inhibited” (119) in defending himself due to “his duty to protect his client’s interest; (120) the exact problem considered in this article. The court addressed this argument in regard to the first finding of misconduct against Cohn, (121) stating that although Cohn had the opportunity to appeal, he chose not to appeal. (122) As such, Cohn’s argument should not prevent collateral estoppel from applying to the prior judgment. (123) The court explained that because the client’s interest aligned with Cohn’s interest to challenge the litigation, had Cohn fully defended himself, he would not have hurt his client. (124) The court further stated that “a lawyer’s duty to his client can almost never extend to permitting an unfounded attack on the lawyer’s own integrity to go unchallenged.” (125)

Cohn also argued that he did not have a full and fair opportunity to explain what happened in the underlying civil action because of other restrictive factors surrounding his ability to appeal the finding. (126) The court rejected this argument because Cohn could have fully testified as to his alleged misconduct in the underlying proceeding. (127) In both instances where Cohn argued that his full and fair opportunity to be heard on issues of professional misconduct was restricted, the court disregarded these arguments. (128)

While in theory, a duty to a client should never prevent a lawyer from appealing and defending himself against a finding in a civil case that could be applied in a later disciplinary proceeding, sometimes there may be situations where the lawyer puts the client’s interests before his own. (129) Some of these circumstances include the lawyer’s primary duty to focus on the interests of the client or the fact that the client has the right to make decisions in a litigation, which may persuade the attorney, at a particular point in the litigation, that it would be unfair to fully defend himself. (130) If Cohn’s interest

aligned with the client’s interest in appealing the judgment, why did Cohn not appeal? One answer may be that the client did not want to spend the money to appeal the judgment, even if it was an unfavorable judgment, and as such Cohn himself could not appeal in his own right because he lacked standing. (131)

The result in Cohn illustrates a more suitable resolution to the collateral estoppel problem faced by attorneys, as the court erred on

the side of caution and allowed the attorney to fully appeal the findings of misconduct against him (132) instead of automatically applying the doctrine of collateral estoppel. In situations where attorneys decline to exercise their opportunity to appeal, collateral estoppel should not automatically preclude an attorney from litigating an issue merely because the opportunity to appeal was present.

In regard to the first finding of misconduct against Cohn, the court also considered another factor typically addressed by courts: the foreseeability of future litigation. The court decided that because the charges against Cohn should have alerted him to the possibility of disciplinary proceedings, such proceedings were foreseeable. (133) While future proceedings may have been foreseeable, Cohn might still have been unaware of the possibility of sanctions, as disciplinary rules may not have been mentioned in the civil proceeding while Cohn was zealously trying to defend his client. Cohn also may not have focused on the ramifications of a finding about his own conduct because he was focused on defending his client, instead of focusing on defending himself against any finding of misconduct made by the judge. (134) Often the rules of professional conduct are not referenced in fact finding proceedings, so the attorney is not sensitive to the fact that the findings may bind him, through collateral estoppel, in a subsequent disciplinary proceeding. (135)

The second civil proceeding, discussed in Cohn, shows the importance of obtaining a final judgment in the underlying proceeding. (136) Here, the court addressed another issue that is problematic for attorneys, whether the finding on the record constituted a final judgment. (137) The court accepted a very low standard as to what comprises a final judgment for collateral estoppel purposes–that finality may only mean that a particular issue has been litigated to a certain stage where the court does not see a good reason to permit the issue to be relitigated. (138) This would mean that the requirement for identity of issue has been met even if the issue of misconduct in this second civil proceeding may never have been fully litigated the first time the issue was before the court.

As illustrated by Cohn, the standard for a final judgment is extremely important in those situations where the judgment is only appealable after the trial has concluded and the matter has ended. (139) The court acknowledged that it would be harsh to hold a finding of misconduct against an attorney in a disciplinary proceeding where the attorney only accepted the unfavorable judgment in order to appeal the finding. (140) In Cohn, the court addressed the lack of an opportunity to appeal where collateral estoppel is applied to an underlying civil judgment, stating that whether or not the opportunity exists “makes little or no difference.” (141) The court followed the Restatement’s view that collateral estoppel cannot be applied to a judgment where, as a matter of law, the party against whom preclusion is sought could not have obtained review of the judgment in the first action. (142) As a result, the court denied the application of collateral estoppel. (143) The principle in the Restatement appears to apply across the board, regardless of whether any extenuating circumstances exist that prevent the party from having an opportunity to appeal. Although an attorney always has a right to appeal a finding of misconduct, this may not be so until the trial is over because the issue could not be legally reviewed in the first action. Applying this principle would ensure that an attorney who cannot technically litigate a finding of misconduct in an underlying civil action would have an opportunity to litigate the finding.

Cohn highlights problems faced by attorneys who try to prevent collateral estoppel from applying to a finding of misconduct in an underlying civil action. (144) Cohn was fortunate in this case to have multiple grounds on which to argue, but not all attorneys have that possibility. (145) Even so, the arguments that Cohn raised concerning why he did not appeal when he had the opportunity were largely discounted by the court. (146) However, the court decided to err on the side of caution and gave Cohn an opportunity to relitigate the issue from the first underlying proceeding, even at the expense of judicial resources. (147)

B. Discipline of Other Licensed Professionals

In analyzing the collateral estoppel problem faced by attorneys, it is useful to look to other licensed professionals in similar situations to see how other disciplinary committees handle this problem. Similar disciplinary procedures apply to other professionals, but with certain differences that conduce to the advantage of these professionals in comparison with attorney disciplinary proceedings. Other licensed professionals, such as securities dealers and physicians, receive a more deferential review in disciplinary proceedings where findings of misconduct have been made against them. (148) These other professions allow for a full and fair opportunity to be heard (149) or apply the collateral estoppel doctrine more leniently in such administrative proceedings. (150)

I. Securities Dealers

When disciplining securities dealers, courts have held that a full and fair opportunity to be heard is a fundamental requirement (151) to protect against arbitrary action taken by the government. (152) Courts have even stated that a disciplinary hearing is required before a person is deprived of a license. (153) In reviewing disciplinary actions taken by the Securities and Exchange Commission (SEC), courts have noted that in an adjudication or binding determination made by an agency concerning the legal right of an individual, the agency must use all available judicial procedures. (154) However, in a fact-finding investigation, where arbitrary government action is not a part of the adjudication, it is not necessary for all judicial procedures to be used. (155) Therefore, even if a party is not given a right to be heard in an underlying action, the defendant is at least entitled to a full and fair opportunity to be heard in the subsequent disciplinary action. (156) That disciplinary action is then reviewed by the SEC, and in some cases a circuit court, in order to ensure that due process rights of the defendant were not violated. (157) Courts only reverse the SEC’s decision regarding a showing of extraordinary circumstances if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” (158)

In this profession, there is an exception to the application of collateral estoppel, allowing securities dealers to make a “showing of extraordinary circumstances” where the SEC will review the underlying reasons as to why the professional did not appeal in the permitted time period. (159) However, despite these due process protections, the same collateral estoppel issues that present themselves in attorney disciplinary proceedings appear in disciplinary proceedings against a securities dealer, regardless of the requirement of a full and fair opportunity. The below examples are significant because the defendants’ arguments were reviewed in the secondary proceeding by the SEC before collateral estoppel was applied to the underlying judgment and their claims dismissed. In this sense, the disciplinary system for securities dealers allowed the defendants to receive a fair review or hearing before discipline was ultimately imposed. The following examples illustrate the SEC’s strict application of the collateral estoppel doctrine even where there is a full and fair opportunity to appeal or there is a default judgment of sanctions.

Where sanctions have been issued against a securities dealer, the SEC has held that the collateral estoppel doctrine applied even where a securities dealer had a full and fair opportunity to appeal the issue of sanctions, yet he did not take this opportunity to appeal. (160) This is similar to the problem faced by attorneys in disciplinary proceedings discussed supra, where the attorney does not have a full and fair opportunity to appeal. The securities dealer attempted to later appeal the sanctions by arguing that underlying reasons existed as to why he did not appeal within the requisite time period to appeal the finding. (161) The SEC has a rule that allows an extension of the time period for an appeal from a final sanction determination, but only if the underlying reasons for not taking the initial appeal constitute a “showing of extraordinary circumstances.” (162) However, the SEC ultimately dismissed the appeal in this case, and found that because the securities dealer declined to appeal the disciplinary committee’s bar in both underlying proceedings when he had a full and fair opportunity to do so, the arguments presented in his late appeal were without merit. (163) The underlying reasons presented to the SEC were not deemed important enough to constitute a showing of “extraordinary circumstances” that would have allowed the securities dealer to appeal the sanctions. (164)

In a situation where sanctions are issued in a default judgment against a securities dealer, the SEC has held that collateral estoppel applied to the judgment when the dealer later tried to appeal the sanctions. (165) Because the sanctions were issued in a default judgment, the securities dealer did not appear before the court to appeal the sanctions when they were issued by the disciplinary committee. The securities dealer was prevented from challenging the disciplinary action in the underlying proceeding because he did not challenge the sanctions when the default judgment was entered. (166) The SEC stated that even when a party is adversely affected by a default judgment, a denial of a motion to set aside the judgment does not make the denial reviewable. (167) Furthermore, the failure to appeal did not constitute “extraordinary circumstances” to permit this later appeal. (168) In other words, because the securities dealer did not challenge the finding of misconduct, the default judgment entered against him was granted collateral estoppel effect. (169)

Even though some instances exist where licensed professionals are subject to the application of collateral estoppel in disciplinary proceedings, the use of the doctrine may sometimes be appropriate. The above examples contain late appeals by securities dealers where collateral estoppel was properly applied after first reviewing the underlying reasons and conditions as to why the securities dealer did not assert a timely appeal. (170) Thus, even though these examples resulted in the application of collateral estoppel, these professionals were allowed to assert a defense as to why they did not appeal. Such situations are different than the problem faced by attorneys who cannot appeal an issue for reasons outside of their control. However, based upon the fact that the defendants could later attempt to later appeal findings of sanctions, it would be better for courts to err on the side of caution when making determinations regarding the application of collateral estoppel in attorney disciplinary proceedings. (171)

2. Physicians

While attorneys are now entitled to “minimal requirements” of due process protections, (172) other licensed professionals, such as physicians, are subject to the same standards of review, but receive a more deferential application of those standards. (173) The medical profession evaluates a finding of misconduct against a physician using the same principles of the collateral estoppel doctrine, but applies such requirements more leniently because the disciplinary proceeding is an administrative proceeding. (174) Because the same standards are used to review other licensed professionals, attorneys should receive the same deferential review in disciplinary proceedings.

Medical disciplinary committees consider several factors in determining whether collateral estoppel applies. (175) One consideration is the fact that the administrative body rendering the decision is merely rendering an advisory opinion, thus acknowledging that the defendant did not have a full and fair opportunity to challenge the determination in the underlying action. (176) Courts have determined that an inquiry into whether relitigation of an issue should be allowed in a particular case depends upon policy considerations of fairness, conservation of resources, and producing consistent results due to the flexible nature of the doctrine of collateral estoppel. (177) A second consideration is the importance of fairness and flexibility of collateral estoppel in an administrative action. (178) The doctrine should be applied more flexibly in administrative actions due to the “quasi-judicial” nature of the proceeding. (179) There are significant differences between a civil trial and a quasi-judicial administrative proceeding including the absence of a jury, the absence of disclosure rules, and the absence of rules of evidence. (180) Courts also acknowledge the realities of the litigation and state that the doctrine of collateral estoppel should not be mechanically applied simply because the formal requirements, including the requirement of a full and fair opportunity, are met. (181) As a result, courts have declined to apply collateral estoppel to such a quasi-judicial proceeding due to “the realities of the litigation” in the present case, including fairness. (182)

Fairness is a key element in determining whether the doctrine of collateral estoppel applies in a specific case. In medical disciplinary proceedings, an adverse factual determination of misconduct made by the disciplinary committee does not preclude the physician from challenging the issue. (183) Thus, even where the defendant had a full and fair opportunity to challenge the litigation, collateral estoppel was not applied because the licensed professional should not be unfairly precluded from challenging an accusation of professional misconduct. (184) The outcome in disciplinary proceedings for physicians is contrary to the outcome in disciplinary cases for other licensed professionals, such as attorneys, when considering the same factors of collateral estoppel; thus illustrating the failings of justice in attorney disciplinary proceedings. The quasi-judicial considerations in physician disciplinary proceedings should be expanded to apply to attorney disciplinary proceedings, especially where extenuating circumstances exist. (185)

The disciplinary committees of the above professions allow the professional who is accused of misconduct to present a defense to any adverse findings before making a final judgment regarding discipline. This is a different standard from that used in attorney disciplinary proceedings because the doctrine of collateral estoppel does not automatically apply. Applying the above considerations in the interest of justice to attorney disciplinary proceedings may prevent the automatic application of the collateral estoppel doctrine and provide a better definition of what constitutes a “full and fair opportunity” in such proceedings.

III. Alternatives

The collateral estoppel doctrine, as it currently exists, can be applied unfairly in attorney disciplinary proceedings if a court fails to consider valid reasons for an attorney’s failure to appeal a finding of misconduct. (186) Attorneys may be helpless to appeal sanctions when the client discharges the attorney; the client decides he does not want to pay the cost of an appeal; or the case settles before the sanction becomes an appealable issue. (187) In this last situation, there is an outstanding decision in the case that the attorney did not have a full and fair opportunity to contest. (188) Another scenario where the collateral estoppel doctrine may create unfairness is when there was an opportunity to challenge the issue, but the attorney did not take the appeal because he did not know or realize that it would result in disciplinary proceedings, or where the attorney was asked by the client not to take the appeal even though the attorney was sanctioned. (189)

The fundamental premise of the legal profession is that the attorney understands and works to further the client’s interests within the bounds of the law. (190) While attorneys have the right to take action on behalf of their client, they may be naturally inclined to avoid doing so in the context of a negative finding against them. (191) In these situations, courts may conclude that there was a full and fair opportunity for the attorney to challenge the issue, but because the attorney did not appeal, the collateral estoppel doctrine applies. (192) Courts often do not accept the explanation that the attorney did not appeal due to loyalty to the client as an adequate explanation why collateral estoppel should not apply. (193)

A narrow carve-out exception to the collateral estoppel doctrine would further the interests of justice by ensuring that attorneys have a true full and fair opportunity to challenge a finding of misconduct before sanctions are imposed. (194) If collateral estoppel applies, the attorney would not have the right to relitigate a sanction before the disciplinary committee. (195) If the attorney knowingly fails to appeal, and has the right and standing to appeal, it may be reasonable to prevent the attorney from relitigating the issue. (196) However, if the attorney willfully fails to appeal due to other extrinsic factors, exceptions to this rule may further the interests of justice. (197) An attorney who is accused of professional misconduct should be allowed to make a showing of extenuating circumstances that deterred him from appealing any sanctions or disciplinary action taken against him. (198) This exception would be comparable to the “extraordinary circumstances” exception presently available to securities dealers. Such a carve-out exception would allow an attorney to make a clear showing that while he technically had the opportunity to appeal, extenuating circumstances rendered this opportunity unfeasible. The carve-out exception will give the attorney an opportunity to relitigate the issue before the grievance or disciplinary committee. (199)

A court’s decision whether a lawyer had a full and fair opportunity to defend misconduct allegations in a civil litigation should be a fact-driven determination. (200) Factors that might be considered in determining whether collateral estoppel should be applied include: whether it was reasonable for the attorney to believe his conduct was at issue, whether the attorney could have reasonably believed that the ethical nature of his conduct would be decided by a motion or a finding, and whether there were any restrictions placed upon the attorney in any hearing that was conducted. (201) Courts should also consider whether the lawyer chose not to exercise procedural rights for himself in order to protect the client and whether the lawyer chose not to exercise procedural rights because of financial reasons or other good cause shown. (202) The consideration that an attorney did not raise a defense, fully litigate, or challenge findings of misconduct for substantial reasons is the most significant (203) and is the result of the “grave injustice” demonstrated in the proposed factors.

Such an exception should essentially permit an attorney to explain the reason why he did not appeal a finding even though a full and fair opportunity existed. (204) The function of the “other good cause shown” factor would ensure that no blanket rule automatically applies collateral estoppel when the attorney’s decision not to appeal was done for strategic reasons, and not merit-based reasons. (205) If an attorney believed that the likelihood of a fair hearing before a judge or an appellate court is small, and the appeal would be costly or unsuccessful, this would be an inappropriate strategic-based reason for the attorney to fail to appeal. (206) However, the court will be in a position fairly to evaluate the legitimacy of the lawyer’s claim that the appeal was not taken for strategic reasons. (207)

Rules to refine the application of collateral estoppel in the disciplinary system may provide an alternative vehicle to fairly or justly impose discipline. (208) A set of rules could also be constructed using the existing rules imposing reciprocal disciplined (209) The rules for reciprocal discipline currendy include defenses that may be raised to prevent the doctrine of collateral estoppel from applying. (210) Such defenses include:

(1) that the procedure … was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or

(2) that there was such an infirmity of proof establishing the misconduct as to give rise to the clear conviction that this court could not, consistent with its duties, accept as final the finding … as to the attorney’s misconduct; or

(3) that the misconduct for which the attorney was disciplined … does not constitute misconduct in th[e] jurisdiction.” (211)

Other defenses include considerations of grave injustice, (212) that the misconduct “warrants substantially different discipline,” (213) and that the comparable discipline would be offensive to public policy. (214)

Applying these defenses to attorney disciplinary proceedings would appropriately except attorneys from the application of the collateral estoppel doctrine and consider unconventional defenses in order to prevent the unfair application of the doctrine. (215) The above rules could be adapted to provide that an attorney would be able to appeal a finding of misconduct and defend against the application of the collateral estoppel doctrine. These proposed alternatives are reflective of the lack of a true opportunity for attorneys to be heard in disciplinary proceedings.

Either of these alternative solutions would help to ensure that attorneys receive a true full and fair opportunity to be heard when facing the imposition of disciplinary sanctions.” (216) After a finding of misconduct is made against the attorney in the underlying civil action, the attorney could continue to zealously defend the client if he is not removed from the case, and counsel could later present an explanation as to why he did not appeal the sanctions at the time that the judgment was made. The attorney would also be able to explain his failure to appeal if he is removed from the case and the client retains new counsel. In either situation, the doctrine of collateral estoppel would not automatically apply to the finding of sanctions in the underlying civil action. The attorney would no longer be forced to accept sanctions for performing his job while following the important premise of the legal profession to protect the loyalty of his client.

“Such limitations on the applicability of collateral estoppel do present some concerns that the well-founded doctrine of collateral estoppel might be undermined by attorneys trying to avoid the reasonable and logical consequences of their past conduct by trying to squeeze into one of the exceptions.” (217) If the disciplinary system functions properly, attorneys will only be able to successfully assert one of these defenses when an appeal could not immediately be taken. In situations where the attorney had a true full and fair opportunity to challenge an issue, the above defenses would not be needed. “Another concern that may be raised is one of ‘finality’ in that if collateral estoppel is not applied and the matter is relitigated and reaches a different factual conclusion, the factual determinations reached in the original case may be cast in doubt.” (218) While the judgment in the first proceeding remains intact as a matter of law, the solidity of its foundation may be questionable. (219) While this may not be a reason to insist upon the application of collateral estoppel, to preclude relitigation, the public policy favoring finality of factual determinations deserves consideration. (220) Although finality has a value in the litigation system, the value of finality in a sanctions judgment should be weighed against the importance of allowing lawyers to have a full and fair opportunity to be heard; and therefore, finality is only one of the competing issues to evaluate in disciplinary proceedings. (221) As long as a proper framework exists to apply limitations to the collateral estoppel doctrine, the benefits of the restrictions will outweigh the potential negative effects.

IV. Conclusion

Where an attorney decides not to appeal a finding of misconduct in an underlying civil action due to client loyalty, financial issues, or for strategic reasons, a right to a full and fair opportunity to appeal may exist, but the attorney may not be free to challenge the issue due to the collateral estoppel doctrine.

Many courts do not address the underlying reasons as to why the attorney did not appeal, but nonetheless apply the doctrine of collateral estoppel in the subsequent attorney disciplinary proceeding. This is a recurring problem for practitioners who encounter the collateral estoppel doctrine when representing other attorneys accused of misconduct. (222)

Although the doctrine is supposed to be flexible and fairly applied, in this circumstance it appears to be unbending and unyielding. (223)

In order to resolve this problem, a carve-out exception should be considered or rules should be instituted to allow attorneys who forego their opportunity to appeal an adverse finding on the record to have a later opportunity to explain why they did not appeal.

By creating an opportunity for attorneys to relitigate–or in a practical sense initially litigate–findings of misconduct in such instances, attorneys would be able to finally have a full and fair opportunity to be heard.

Citations

(1) See American Bar Association (ABA) Model Rules of Prof’l Conduct R. 3.1 (2012) (“A lawyer shall not bring or defend a proceeding … unless there is a basis in law and fact for doing so that is not frivolous.”); Model Rules of Prof’l Conduct R. 1.7-1.9, 1.13, 1.18 (discussing conflicts of interest); Model Rules of Prof’l Conduct R. 5, 9-10 (discussing fiduciary duties owed to clients).

(2) See Lisa G. Lerman and Philip G. Schrag, Ethical Problems in the Practice of Law 382383 (3d ed. 2012) (discussing sanctions in regard to conflicts of interest). Sanctions may include disqualification, discipline, malpractice liability, and fee forfeiture. Id. Fines may also be imposed when a rule is violated. See, e.g., 22 N.Y. Comp. Codes R. & Regs. [section] 1000.16(a) (2012).

(3) See Model Rules of Prof’l Conduct R. 1.16(a)(3) (2012).

(4) The final-judgment rule, which applies to litigation, states that appeals can only be made from a court’s final decision on the merits, which ends the litigation, and cannot be made prior to the trial court’s final ruling on the case. See 28 U.S.C. [section] 1291 (2012). An attorney that has a sanction imposed by a professional conduct committee or is wronged by a finding of professional misconduct has a right to appeal the sanction or finding to the appropriate tribunal. See, e.g., N.H. Sup. Ct. R. 37(3)(c) (2010); Cal. Civ. Proc. Code [section][section] 904.1(a)(11)-(12), (b) (2007); 37 Pa. Code [section] 171.144 (1980).

(5) Once an issue of law or fact is “actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.” Restatement (Second) of Judgments [section] 27 (1982).

(6) An attorney may reveal confidential information in certain situations, including where it is necessary for the attorney to assert a defense to a civil claim or criminal charge against the attorney arising from conduct involving the client or to respond to any allegations, including allegations of misconduct, stemming from any proceeding which concern the attorney’s representation of his client. Model Rules of Prof’l Conduct R. 1.6(b)(5) (2012). However, in many situations, the attorney may choose not to reveal the client’s confidential information as it may be too harmful to the client. See Martha Neil, Lawyer Who Urged Client to Clean up Facebook Page Has Paid $544K Legal Bill; Now Faces Ethics Case, ABA Journal (July 11, 2013), http://www.abajournal. com/mobile/article/lawyer_who_encouraged_client_ to_clean_up_facebook_page_paid_544k_legal_bill/ ?utm_source=maestro&utm_medium = email& utm_campaign=weekly_email.

(7) “Loyalty and independent judgment are essential elements in the lawyer’s relationship to a client.” Model Rules of Prof’l Conduct R. 1.7 cmt. 1 (2012).

(8) See In re Bruzga, 712 A.2d 1078, 1079 (N.H. 1998).

(9) See, e.g., Schwartz v. Pub. Adm’r of Bronx Cnty., 246 N.E.2d 725, 728-729 (N.Y. 1969) (invocation of the doctrine of collateral estoppel requires “an identity of issue which has necessarily been decided in the prior action and is decisive of the present action” and “a full and fair opportunity to contest the decision now said to be controlling”).

(10) See infra notes 96-104 and accompanying text. Accordingly, the issue was raised, litigated, and adjudicated as a final judgment on the issue.

(11) See Schwartz, 246 N.E.2d at 728-729.

(12) See Kaufman v. Eli Lilly & Co., 482 N.E.2d 63, 67 (N.Y. 1985) (“First, the identical issue necessarily must have been decided in the prior action and be decisive of the present action, and second, the party to be precluded from relitigating [that same] issue must have had a full and fair opportunity to contest the prior determination.”).

(13) Telephone Interview with Michael S. Ross, Esq., Principal, Law Offices of Michael S. Ross (Jan. 12, 2013) [hereinafter Ross Interview, Jan. 12, 2013] (notes of the interview on file with author).

(14) Id.

(15) A Hobson’s choice is “an apparently free choice when there is no real alternative.” Merriam-Webster’s Collegiate Dictionary 551 (10th ed. 1999); see Respondent’s Amended Answer Brief & Initial Brief on Cross-Appeal at 14, Florida Bar v. St. Louis, 967 So. 2d 108 (Fla. 2007) (No. SC04-49), available at http://www.law.fsu. edu/Library/flsupct/sc04-49/04-49ans.pdf (stating that “facing a ‘Hobson’s choice,’ Respondent [attorney] and his former partners acquiesed … reasoning in part that to do otherwise would effectively deprive their clients of financial survival”); Telephone Interview with Michael S. Ross, Esq., Principal, Law Offices of Michael S. Ross (Nov. 27, 2012) [hereinafter Ross Interview, Nov. 27, 2012] (notes of the interview on file with author).

(16) See infra notes 91-100 and accompanying text.

(17) Eg., N.Y. Jud. Law [section] 90(10) (McKinney 2012) (“Any statute or rule to the contrary notwithstanding, all papers, records and documents upon the application or examination of any person for admission as an attorney and counsellor at law and upon any complaint, inquiry, investigation or proceeding relating to the conduct or discipline of an attorney or attorneys, shall be sealed and be deemed private and confidential.”). Records are only divulged fully or in part by written order with good cause shown by the discretion of the presiding justice of the appellate division. See generally Debra Moss Curtis, Attorney Discipline Nationwide: A Comparative Analysis of Process and Statistics, 35 J. Legal Prof. 209 (2011) (discussing the use of private reprimands in attorney discipline throughout the fifty states). This is true unless and until a lawyer is publicly disciplined. Even when public discipline is eventually imposed, the final disciplinary decision may not include a discussion of the court’s prior, unreported, decision applying or declining to apply collateral estoppel in the case. Because there have been few published decisions discussing the application of collateral estoppel to prior civil findings and because little has been written on the subject, lawyers in New York may not fully be aware of the problem. Telephone Interview with Sarah Diane McShea, Law Offices of Sarah Diane McShea (Nov. 27, 2012) [hereinafter McShea Interview] (notes of the interview on file with author).

(18) The New York State Bar Association Committee on Professional Discipline is currently studying the use of collateral estoppel in attorney disciplinary proceedings in New York to analyze the problem discussed in this article. McShea Interview, supra note 17.

(19) In re Owens, 532 N.E.2d 248, 252 (111. 1988).

(20) Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979) (citing Blonder-Tongue Labs., Inc. v. Univ. of 111. Found., 402 U.S. 313, 328-329 (1971)).

(21) Fidler v. E.M. Parker Co., 476 N.E.2d 595, 599-600 (Mass. 1985) (quoting Restatement (Second) of Judgments [section] 29 (1982)) (internal quotation marks omitted).

(22) Parklane Hosiery Co., 439 U.S. at 336-337.

(23) Id

(24) Id. at 329.

(25) Id

(26) Id. Defensive use of collateral estoppel is not part of the issue addressed in this article, and will not be discussed further. Briefly, the defensive use of collateral estoppel prevents a plaintiff from relitigating the same issue by switching parties. Id. (citing Bernhard v. Bank of Am. Nat’l Trust & Sav. Ass’n, 122 P.2d 892, 895 (Cal. 1942)).

(27) In re Owens, 532 N.E.2d at 251.

(28) Taylor v. Sturgell, 553 U.S. 880, 892-893 (2008) (citing Richards v. Jefferson Cnty., 517 U.S. 793, 798 (1996)). For example, the Second Circuit allows offensive use of the doctrine, except where the plaintiff did not have “a full and fair opportunity to litigate the issue effectively.” Zdanok v. Glidden Co., Durkee Famous Foods Div., 327 F.2d 944, 956 (2d Cir. 1964) (quoting Brainerd Currie, Mutuality of Collateral Estoppel: Limits of the Bernhard Doctrine, 9 Stan L. Rev. 281, 308 (1957)) (internal quotation marks omitted).

(29) According to the Restatement (Second) of Judgments, an issue is actually litigated after the issue has been properly raised, typically by the pleadings; submitted to the court for determination; and is determined by the court. Restatement (Second) of Judgments [section] 27 cmt. d (1982); see Ryan v. N.Y. Tel. Co., 467 N.E.2d 487, 490 (N.Y. 1984) (citing Gramatan Home Investors Corp. v. Lopez, 386 N.E.2d 1328, 1331 (N.Y. 1979)).

(30) Choi v. State, 549 N.E.2d 469, 471 (N.Y. 1989) (citing Schwartz, 246 N.E.2d at 728-729); see also Gilberg v. Barbieri, 423 N.E.2d 807, 808-810 (N.Y. 1981)).

(31) Ryan, 467 N.E.2d at 501 (quoting Schuykill Fuel Corp. v. Nieberg Realty Corp., 165 N.E. 456, 457 (N.Y. 1929)) (internal quotation marks omitted); see also Cromwell v. County of Sac, 94 U.S. 351 (1876).

(32) In re Cohen, 753 N.E.2d 799, 805 (Mass. 2001) (citing Miles v. Aetna Cas. & Sur. Co., 589 N.E.2d 314, 317 (Mass. 1992)).

(33) Choi, 549 N.E.2d at 471 (citing Schwartz, 246 N.E.2d at 728-729; Gilberg, 423 N.E.2d at 808-810).

(34) Nesbit v. Indep. Dist. of Riverside, 144 U.S. 610, 618 (1892); Cromwell, 94 U.S. at 353; Schuykill Fuel Corp., 165 N.E. at 457 (citing Cromwell).

(35) Cromwell, 94 U.S. at 353-354. This limitation on collateral estoppel is not restricted to decisions of the United States Supreme Court and is recognized in many states as settled law. See Schuykill Fuel Corp., 165 N.E. at 457 (citations omitted); see, e.g., Independent Harvester Co. v. Tinsman, 253 F. 935 (7th Cir. 1918); Jacobson v. Miller, 1 N.W. 1013, 1016-1017 (Mich. 1879); Griffen v. Keese, 80 N.E. 367 (N.Y. 1907); Tudor v. Kennett, 88 A. 520 (Vt. 1913).

(36) Restatement (Second) of Judgments [section] 47 cmts. b, d, e, g (Tentative Draft No. 1, 1973).

(37) Id. at cmts. b & e.

(38) Id

(39) Id. at cmt. d.

(40) The Restatement qualifies this exception to “sums that have accrued and are unpaid or as to sums that will accrue in the future….” Id.

(41) Id. However, the Restatement does not define what constitutes an “important interest!] of a sister State.” Id.

(42) Id.; see generally Restatement (Second) of Conflict of Laws [section] 93-121 (1971) (discussing the effect of a final judgment in another state and giving the judgment full faith and credit).

(43) Restatement (Second) of Judgments [section] 41 cmt. g (Tentative Draft No. 1, 1973). Comment g to [section] 41 of the Restatement goes on to say that in some situations an issue should be precluded without awaiting the end judgment where awaiting a final judgment in the strict definition would cause unnecessary effort and expense, hardship, or a lengthy postponement; however, if a decision was tentative, the court should refuse to grant preclusion. Id. Before deciding whether to grant preclusion on an issue without a final judgment, “the court should determine that the decision … was adequately deliberated and firm even if not final in the sense of forming a basis for a judgment already entered.” Id. The Restatement cautions that the application of collateral estoppel in this manner can result in inconsistent judgments. Id.

(44) Id.

(45) In re Truong, 768 N.Y.S.2d 450, 452 (App. Div. 2003); accord In re Cohen, 753 N.E.2d at 805 (citing Restatement (Second) of Judgments [section] 29 (1982)); Fidler, 476 N.E.2d at 599 (applying federal law); see Schwartz, 246 N.E.2d 725.

(46) Taylor, 553 U.S. at 892-893.

(47) The concept of a full and fair opportunity to litigate a claim is a general limitation of the collateral estoppel doctrine recognized by the U.S. Supreme Court, as well as many of the states. Allen v. McCurry, 449 U.S. 90, 95 (1980) (citations omitted); see also Blonder-Tongue Labs., 402 U.S. at 328-329; Ford Motor Co. v. Superior Court, 94 Cal. Rptr. 127 (Ct. App. 1971); Ellis v. Crockett, 451 P.2d 814 (Haw. 1969); Paradise Palms Cmty. Ass’n v. Paradise Homes, Inc., 505 P.2d 596 (Nev. 1973); Ryan, 467 N.E.2d at 490-491; Hicks v. De La Cruz, 369 N.E.2d 776 (Ohio 1977); Richards v. Hodson, 485 P.2d 1044 (Utah 1971); see generally Restatement (Second) of Judgments [section] 29 (1982).

(48) Samhammer v. Home Mut. Ins. Co. of Binghamton, 507 N.Y.S.2d 499, 501 (App. Div. 1986) (citing Gilberg, 423 N.E.2d at 808-810); see Schwartz, 246 N.E.2d at 730 (“No one would contend that the doctrine of collateral estoppel should be applied rigidly”); see also People v. Plevy, 417 N.E.2d 518, 523-524 (N.Y. 1980) (“[Collateral estoppel] is not to be applied against a defendant with the same rigor as against the State.”).

(49) Gilberg, 423 N.E.2d at 809.

(50) Id.

(51) Schwartz, 246 N.E.2d at 729; Ryan, 467 N.E.2d at 491 (citing Plevy, 417 N.E.2d at 522).

(52) Schwartz, 246 N.E.2d at 729. Other factors include the size of the claim, the use of initiative, the competence and experience of counsel, the availability of new evidence, and indications of a compromise verdict. Id.-, Ryan, 467 N.E.2d at 491; see also Gilberg, 423 N.E.2d at 809 (citing Schwartz, 246 N.E.2d at 729; Restatement (Second) of Judgments [section] 88 (Tentative Draft No. 3, 1976)).

(53) Gilberg, 423 N.E.2d at 809. The query is not intended to decide whether the judgment in the previous action should be vacated. Id.-, see also Restatement (Second) of Judgments [section] 88 (Tentative Draft No. 3, 1976).

(54) King Gen. Contractors, Inc. v. Reorganized Church of Jesus Christ of Latter Day Saints, 821 S.W.2d 495, 501 (Mo. 1991) (citing Green v. Montgomery Ward & Co., 775 S.W.2d 162, 164 (Mo. Ct. App. 1989)).

(55) In re Owens, 532 N.E.2d at 252.

(56) Montana v. United States, 440 U.S. 147, 164 n.11 (1979); see Restatement (Second) of Judgments [section] 68.1(c) (Tentative Draft No. 4, 1977).

(57) Office of Disciplinary Counsel v. Kiesewetter, 889 A.2d 47, 52 (Pa. 2005) (citing Parklane Hosiery Co., 439 U.S. at 329-331).

(58) In re Capoccia, 709 N.Y.S.2d 640, 647-648 (App. Div. 2000).

(59) See, e.g., In re Abady, 800 N.Y.S.2d 651, 652 (App. Div. 2005).

(60) See, e.g., N.Y. Jur. 2d Attorneys at Law [section] 341 (2012); 46 N.J. Prac., New Jersey Attorney and Judicial Discipline [section] 1:2 (2012) (explaining that New Jersey “has established a multi-tiered bureaucracy” for imposing attorney discipline); 6 Mich. Ct. Rules Prac., Text R 9.110 (4th ed.) (2012) (discussing the composition of the attorney discipline board); see generally Curtis, supra note 17.

(61) 7 N.Y. Jur. 2d Attorneys at Law 1 341 (2012) (citing N.Y. Jud. Law [section] 90(2) (McKinney 2012)); see, e.g., In re Abady, 800 N.Y.S.2d at 652.

(62) Curtis, supra note 17, at 285-286; 7 N.Y. Jur. 2d Attorneys at Law [section] 341 (2012) (citing 22 N.Y. Comp. Codes R. & Regs. [section][section] 603.1-603.24 (2013) (First Department); 22 N.Y. Comp. Codes R. & Regs. [section][section] 691.1-691.25 (2013) (Second Department); 22 N.Y. Comp. Codes R. & Regs. [section][section] 806.1-806.19 (2013) (Third Department); 22 N.Y. Comp. Codes R. & Regs. [section][section] 1022.1-1022.36 (2013) (Fourth Department)).

(63) Curtis, supra note 17, at 285-286.

(64) In re Abady, 800 N.Y.S.2d at 659 (citing 22 N.Y. Comp. Codes R. & Regs. [section] 605.13(p) (2012)).

(65) Id. at 659-660 (citations omitted); 22 N.Y. Comp. Codes R. & Regs. [section] 605.13(p)(4) (2012).

(66) N.Y. Jud. Law [section] 90(8) (McKinney 2012).

(67) See, e.g., In re Abady, 800 N.Y.S.2d at 652. This is an offensive use of the doctrine. In re Brauer, 890 N.E.2d 847, 857 (Mass. 2008) (citing Bar Counsel v. Board of Bar Overseers, 647 N.E.2d 1182, 1185 (Mass. 1995)).

(68) Bar Counsel, 647 N.E.2d at 1185; Gerrard v. Larsen, 517 F.2d 1127, 1135 (8th Cir. 1975) (citing Blonder-Tongue Labs., 402 U.S. at 329; Zdanok, 327 F.2d at 954-956; Skrzat v. Ford Motor Co., 389 F. Supp. 753, 757-758 (D.R.I. 1975); Teitelbaum Furs, Inc. v. Dominion Ins. Co., 375 P.2d 439, 441 (Cal. 1962)); see also Oates v. Safeco Ins. Co. of Am., 583 S.W.2d 713, 719 (Mo. 1979) (stating that fairness is an overriding consideration).

(69) Restatement (Second) of Judgments [section] 29 (1982) reporter’s note (citing Parklane Hosiery Co., 439 U.S. 322; Johnson v. United States, 576 F.2d 606 (5th Cir. 1978); Speaker Sortation Sys. v. U.S. Postal Serv., 568 F.2d (7th Cir. 1978); Vanguard Recording Soc’y, Inc. v. Fantasy Records, Inc., 100 Cal. Rptr. 826 (Ct. App. 1972); Thill v. Modern Erecting Co., 170 N.W.2d 865 (Minn. 1969); Bahler v. Fletcher, 474 P.2d 329 (Or. 1970)).

(70) In re Owens, 123 B.R. 434, 438 (Bankr. M.D. Fla. 1991); see also Kiesewetter, 889 A.2d at 53-55.

(71) Ryan, 467 N.E.2d at 491 (citing Schwartz, 246 N.E.2d at 730; B.R. DeWitt, Inc. v. Hall, 225 N.E.2d 195 (N.Y. 1967)) (discussing the burden of proof in regard to administrative determinations); Gramatan Home Investors Corp., 386 N.E.2d at 1331).

(72) In re Owens, 123 B.R. at 438 (citing Klingman v. Levinson, 831 F.2d 1292, 1296 (7th Cir. 1987); Halpern v. First Georgia Bank, 810 F.2d 1061, 1063 (11th Cir. 1987); Chang v. Daniels, 91 B.R. 981, 985 (Bankr. M.D. Fla. 1988)) (discussing the requirements to prove nondischarge-ability).

(73) Ryan, 467 N.E.2d at 491 (citing Schwartz, 246 N.E.2d at 730; B.R. DeWitt, Inc., 19 N.Y.2d 141; Gramatan Home Investors Corp., 386 N.E.2d at 1331).

(74) See 1 Fed. Appellate Prac. Guide 9th Cir. 2d [section] 4:3; Salve Regina Coll. v. Russell, 499 U.S. 225, 231 (1991).

(75) In re Caranchini, 956 S.W.2d 910, 911-912 (Mo. 1997) (citing In re Charron, 918 S.W.2d 257, 259 (Mo. 1996) (en banc)); In re Tanz, 252 N.Y.S. 769, 770 (App. Div. 1931) (citations omitted); In re Eldridge, 82 N.Y. 161, 165 (1880); see In re Santosuosso, 62 N.E.2d 105, 107-108 (Mass. 1945), abrogated as noted in Bar Counsel, 647 N.E.2d 1182.

(76) In re Caranchini, 956 S.W.2d at 911 (citing In re Charron, 918 S.W.2d at 259).

(77) In re Owens, 532 N.E.2d at 252; In re Bruzga, 712 A.2d at 1080 (citing N.H. Sur. Cr. R. 37(l)(a); In re Brooks, 678 A.2d 140, 142 (N.H. 1996)).

(78) In re Owens, 532 N.E.2d at 252.

(79) Id.

(80) In re Santosuosso, 62 N.E.2d at 108 (citing State ex rel. Neb. State Bar Ass’n v. Gudmundsen, 16 N.W.2d 474, 476 (Neb. 1944)) (discussing an action for disbarment). However, facts may be precluded from relitigation in disciplinary proceedings if they were essential facts to the previous action. In re Bruzga, 712 A.2d at 1080 (citing Simpson v. Calivas, 650 A.2d 318, 323 (N.H. 1994)).

(81) See, e.g., 22 N.Y. Comp. Codes R. & Regs. [section][section] 603.3(c)(1)–(3) (1998); 22 N.Y. Comp. Codes R. & Regs. [section][section] 1022.22 (2000); see also 22 N.Y. Comp. Codes R. & Regs. [section][section] 691.3(c)(1)–(3) (1995); 22 N.Y. Comp. Codes R. & Regs. [section][section] 806.19(d)(1)–(3) (2005); 27 N.C. Admin. Code [section][section] 1B.0116(3)(C), (D) (2012); 204 Pa. Code [section] 91.51 (3)(iii) (2012); Ala. Admin. Code r. 930-X-l-.23(4)(c) (2012).

(82) See, e.g., 22 N.Y. Comp. Codes R. & Regs. [section][section] 603.3(c)(l)-(3); 22 N.Y. Comp. Codes R. & Regs. [section][section] 1022.22; see also 22 N.Y. Comp. Codes R. & Regs. [section][section] 691.3(c)(1)-(3); 22 N.Y. Comp. Codes R. & Regs. [section][section] 806.19(d)(1)-(3); 27 N.C. Admin. Code IB.0116(3)(C), (D); 204 Pa. Code [section][section] 91-51 (3)(iii).

(83) See, e.g., 22 N.Y. Comp. Codes R. & Regs. [section][section] 603.3(c)(l)-(3); 22 N.Y. Comp. Codes R. & Regs. [section][section] 1022.22; see also 22 N.Y. Comp. Codes R. & Regs. [section][section] 691.3(c)(l)-(3); 22 N.Y. Comp. Codes R. & Regs. [section][section] 806.19(d)(l)-(3); 27 N.C. Admin. Code 1 B.0116(3)(C), (D); 204 Pa. Code [section] 91.51(3)(iii).

(84) See In re Caranchini, 956 S.W.2d at 911-912 (citing In re Storment, 873 S.W.2d 227, 230 (Mo. 1994) (en banc) (stating that foreign state disciplinary order can serve as the basis for discipline); In re Frick, 694 S.W.2d 473, 477^78 (Mo. 1985) (en banc) (explaing that state court findings are binding in state disciplinary proceedings)).

(85) See 28 U.S.C. [section] 1738 (2012).

(86) A judgment may be modified in the forum state or the judgment improperly interferes “with important interests of a sister State.” Restatement (Second) of Judgments [section] 47 cmt. d (Tentative Draff No. 1, 1973); see generally Restatement (Second) of Conflict of Laws [section] 93-121 (1971) (discussing the effect of a final judgment in another state and giving the judgment full faith and credit).

(87) In re Holmes, No. 1987CF0792, 1994 WL 880130, at *3 (111. Hum. Rts. Com. June 10, 1994); see also Eastman Kodak Co. v. Guasti, 386 N.E.2d 291 (111. App. Ct. 1979), abrogated on other grounds by People v. Vincent, 871 N.E.2d 17 (111. 2007); Smith v. Lehn & Fink Prods. Corp., 361 N.E.2d 661 (111. App. Ct. 1977).

(88) In re Abady, 800 N.Y.S.2d at 660; Restatement (Second) of Judgments [section] 27 (1982). This is because the issue has not actually been litigated.

(89) In re Abady, 800 N.Y.S.2d at 660 (citing Kanat v. Ochsner, 755 N.Y.S.2d 371, 374 (App. Div. 2003); In re Latimore, 683 N.Y.S.2d 526, 527 (App. Div. 1999)).

(90) 7n re Abady, 800 N.Y.S.2d at 661; In re Catt, 368 F.3d 789, 791 (7th Cir. 2004); see also In re Cantrell, 329 F.3d 1119 (9th Cir. 2003) (California default judgment had issue-preclusive effect); In re Caton, 157 F.3d 1026, 1028-1029 (5th Cir. 1998) (Illinois default judgment had issue-preclusive effect); Stephan v. Rocky Mountain Chocolate Factory, Inc., 136 F.3d 1134, 1136 (7th Cir. 1998) (Colorado default judgment had issue-preclusive effect); Grantham Realty Corp. v. Bowers, 22 N.E.2d 832, 836 (Ind. 1939).

(91) In re Catt, 368 F.3d at 791 (7th Cir. 2004).

(92) In re Abady, 800 N.Y.S.2d at 661 (quoting In re Latimore, 683 N.Y.S.2d at 528) (internal quotation marks omitted).

(93) Id.-, Kanat, 755 N.Y.S.2d 371; In re Latimore, 683 N.Y.S.2d at 528. In Kanat, the defendants “affirmatively chose not to [litigate the underlying merits of the prior action] by their own failure … Defendants therein charted the course of their own litigation….” In re Abady, 800 N.Y.S.2d at 661. The court in Kanat upheld the application of the collateral estoppel doctrine based upon a default judgment, and the court in Abady affirmed. Id. In Latimore, the defendant “allowed a default judgment to be entered against her [in the underlying civil action], failed to persuade the supreme court to vacate said default and did not pursue her appeal.” In re Latimore, 683 N.Y.S.2d at 528. The court then affirmed the application of collateral estoppel. Id.

(94) Arnica Mut. Ins. Co. v. Jones, 445 N.Y.S.2d 820, 823 (App. Div. 1981). The general rule is true “unless the litigated rights be joint, in which case reversal as to persons made party to the appeal requires reversal as to all persons who were parties to the judgment, whether or not made party to the appeal.” Id.

(95) In re Abady, 800 N.Y.S.2d at 660-661; In re Latimore, 683 N.Y.S.2d at 528; see also Kanat, 755 N.Y.S.2d 371.

(96) Telephone Interview with Sarah Jo Hamilton, Esq., Partner, Scalise & Hamilton, LLP (Nov. 29, 2012) [hereinafter Hamilton Interview] (notes of interview on file with author); Telephone Interview with Richard M. Maltz, Esq., Counsel, Frankfurt, Kurnit, Klein & Selz, PC (Nov. 29, 2012) [hereinafter Maltz Interview] (notes of interview on file with author); Ross Interview, Nov. 27, 2012, supra note 15; see also Jeff Henle, Applying Collateral Estoppel in Attorney Discipline Cases, N.Y. L.J., Oct. 17, 2012, at 4; Hal R. Lieberman, Attorney Discipline System: Does It Meet Due Process’ Requirements?, N.Y. L.J., Aug. 31, 2012, at 3; Hal R. Lieberman, New York’s Attorney Discipline System: How Much ‘Process’ Is ‘Due’?, N.Y. L.J., Apr. 4, 2012, at 3 [hereinafter Lieberman, How Much Process]. This reflects situations prior to the diciplinary proceeding, where the attorney may not think or decides not to contest sanctions without realizing the possible disciplinary ramifications of a sanction or an adverse finding outside of the context of a sanction motion. Maltz Interview.

(97) Telephone Interview with Michael S. Ross, Esq., Principal, Law Offices of Michael S. Ross (Jan. 7, 2013) [hereinafter Ross Interview, Jan. 7, 2013] (notes of interview on file with author).

(98) See, e.g., In re Abady, 800 N.Y.S.2d at 660 (citing Kanat, 755 N.Y.S.2d at 374; In re Latimore, 683 N.Y.S.2d at 527-528); In re Truong, 768 N.Y.S.2d at 453; In re Kramer, 664 N.Y.S.2d 1, 3 (App. Div. 1997).

(99) Lieberman, How Much Process, supra note 96.

(100) Id. (citing Younger v. Harris, 401 U.S. 37 (1971)).

(101) Id.

(102) Sarah Diane McShea, To Preclude or Not to Preclude: Should A Lawyer Have Two Bites at the Apple Before Being Thrown Out of the Garden? Or, what is the appropriate use of fact or issue preclusion in disciplinary proceedings?, at 2 (August 1994) (published in program materials of the Association of Professional Responsibility Lawyers Annual Meeting, New Orleans) (on file with author) (citations omitted).

(103) Id. at 2 n.4 (citing Weiss v. Statewide Grievance Comm., No. CV-90-0111646, 1992 Conn. Super. LEXIS 3281 (Conn. Super. Ct. Nov. 20, 1992); Florida Bar v. Gross, 610 So.2d 442 (Fla. 1992); In re Owens, 532 N.E.2d 248; In re Santosuosso, 62 N.E.2d 105; Levi v. Mississippi State Bar, 436 So.2d 781 (Miss. 1983); In re Tanz, 252 N.Y.S. 769; In re Jordan, 665 P.2d 341 (Or. 1983); In re Strong, 616 P.2d 583 (Utah 1980)); Neely v. Comm’n for Lawyer Discipline, 976 S.W.2d 824 (Tex. App. 1998); see also Goldstein v. Comm’n for Lawyer Discipline, 109 S.W.3d 810, 813-814 (Tex. App. 2003) (explaining that the application of collateral estoppel to findings made after a hearing “was not justified” in Neely due to ” the differences in (1) the nature of the proceeding, (2) the issues to be considered by the two courts, and (3) the different consequences involved” (citing Neely, 976 S.W.2d at 827)).

(104) McShea, supra note 102, at 2-3; see Lawyer Suspended from Practice in S.D.N. Y. Pending Final Resolution of Disciplinary Charges, Joseph Hage Aaronson LLC, http://www.jha.com/us/blog/ ?blogID = 542 (last visited Nov. 5, 2013).

(105) No. M-5696 (N.Y. App. Div., 1st Dept. July 20, 1983). In re Cohn was an unpublished opinion that is now part of the public disbarment file in this case. A detailed description of the facts are available at Matter of Cohn: Charge II & Charge III, http://www. leagle.com/decision/1986133118AD2d 15_1131 (last visited Nov. 5, 2013).

(106) In re Capoccia, 709 N.Y.S.2d at 643.

(107) In re Cohn, No. M-5696, at 1. The codicil named Cohn, and others, as additional representatives and trustees. Id.

(108) Id.

(109) Id. This second proceeding was a contempt proceeding for violating the court order. Id. at 2.

(110) Id. at 1-2. The Probate Division of the Circuit Court of Florida heard the matter relating to the codicil and the United States District Court for the Southern District of New York heard the escrow matter. Id.

(111) Id. at 2-3. Disciplinary proceedings were instituted by the Departmental Disciplinary Committee for the First Judicial Department of the Appellate Division of the New York Supreme Court. Id.

(112) Id. at 2 (citing In re Levy, 333 N.E.2d 350, 352 (N.Y. 1975)). The court noted exceptions to the application of collateral estoppel in criminal convictions and reciprocal disciplinary actions. Id. at 3 (citing 22 N.Y. Comp. Codes R. & Regs. [section] 603.3(c)).

(113) In re Capoccia, 709 N.Y.S.2d at 643.

(114) McShea, supra note 102, at 4.

(115) In re Cohn, No. M-5696, at 5.

(116) Id. at 3 (citing In re Tanz, 252 N.Y.S. 769). Schwartz, 246 N.E.2d at 728-729, abolished the mutuality requirement.

(117) 246 N.E.2d 725 (N.Y. 1969).

(118) In re Cohn, No. M-5696, at 11, 14.

(119) Id. at 6 (quoting Malloy v. Trombley, 405 N.E.2d 213, 216 (N.Y. 1980)) (internal quotation marks omitted).

(120) Id.

(121) In this proceeding, Cohn was accused of malpractice when acting as personal representative of a large estate and trustee of a smaller trust when making misrepresentations to his clients. Id. at 1, 6-7.

(122) Id. at 7.

(123) Id.

(124) Id. at 6.

(125) Id. (citing The Lawyer’s Code of Professional Responsibility, DR 4-101 (C)(4)).

(126) In re Cohn, No. M-5696, at 7.

(127) Id

(128) Id at 6-7.

(129) Ross Interview, Jan. 7, 2013, supra note 97.

(130) Maltz Interview, supra note 96; Ross Interview, Nov. 27, 2012, supra note 15. However, the attorney should not defend the client’s interests by knowingly acting unethically. Maltz Interview, supra note 96.

(131) Maltz Interview, supra note 96; Ross Interview, Nov. 27, 2012, supra note 15. An attorney would have standing to appeal if the sanction is a personal sanction against the attorney. Maltz Interview, supra note 96.

(132) In re Cohn, No. M-5696, at 6.

(133) Id.

134 Maltz Interview, supra note 96.

(135) Id.

(136) In re Cohn, No. M-5696, at 11.

(137) Id. at 12.

(138) Id. (quoting Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 89 (2d Cir. 1961)).

(139) Id. at 13 (citing U.S. Steel Corp. v. Fraternal Ass’n of Steel Haulers, 601 F.2d 1269, 1273 (3d Cir. 1979)).

(140) Id. The court acknowledged it would be harsh to hold a finding of civil contempt against an attorney in a disciplinary proceeding where the attorney did comply with the court order. Id.

(141) Id. at 13-14 (citing Johnson Co. v. Wharton, 152 U.S. 252 (1984); United States v. Munsingwear, Inc., 340 U.S. 36 (1950); Sherman v. Jacobson, 247 F. Supp. 261, 268 (1965); c.f. Lummus Co., 297 F.2d at 89).

(142) Id. at 14 (citing Restatement (Second) of Judgments [section] 28 (1982)).

(143) Id. (citing Restatement (Second) of Judgments [section] 28 (1982)). There was no final judgment on the issue.

(144) See Jeff Henle, Applying Collateral Estoppel in Attorney Discipline Cases, N.Y. L.J., Oct. 17, 2012, at 4; Hal R. Lieberman, Attorney Discipline System: Does It Meet Due Process’ Requirements?, N.Y. L.J., Aug. 31, 2012, at 3; Lieberman, How Much Process, supra note 96; McShea, supra note 102.

(145) See, e.g., In re Abady, 800 N.Y.S.2d 651; In re Owens, 532 N.E.2d at 251; Bar Counsel, 647 N.E.2d 1182; In re Caranchini, 956 S.W.2d at 912.

(146) In re Cohn, No. M-5696, at 14. The court did not reject Cohn’s arguments in the second proceeding due to procedural issues. Id.

(147) Id. at 11, 15. In the second proceeding, the court concluded that judicial resources would be preserved by “using the prior testimony and record as evidence.” Id. at 15.

(148) See, e.g., Jeffreys v. Griffin, 801 N.E.2d 404, 407-408 (N.Y. 2003).

(149) Erenstein v. S.E.C., 316 F. App’x 865, 872 (11th Cir. 2008) (citing Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).

(150) Jeffreys, 801 N.E.2d 404.

(151) Erenstein, 316 F. App’x at 872 (citing Armstrong, 380 U.S. at 552).

(152) Id. (citing Wolff v. McDonnell, 418 U.S. 539, 558 (1974)).

(153) Id. (citing Wolff, 418 U.S. at 557-558).

(154) Id. (citing Hannah v. Larche, 363 U.S. 420, 442 (1960)).

(155) Id. (citing Hannah, 363 U.S. at 442).

(156) Id; In re Asensio, 2010 SEC LEXIS 2014, at *1, *33 (2010).

(157) Erenstein, 316 F. App’x at 872.

(158) Asensio v. SEC, 447 F. App’x 984, 987 (11th Cir. 2011) (quoting 5 U.S.C. [section] 706(2)(A) (2012)) (internal quotation marks omitted); see Hateley v. SEC, 8 F.3d 653 (9th Cir. 1993) (noting that courts overturn SEC sanctions orders when they are without factual justification or not warranted by law).

(159) In re Asensio, 2010 SEC LEXIS 2014, at *19; In re Minton, 2002 SEC LEXIS 2712, at *11 (2002); see also Asensio, 447 F. App’x at 987 (citing 17 C.F.R. [section] 201.420(b) (2011)) (according to section 19(d)(1) of the Securities Exchange Act of 1934, codified at 15 U.S.C. [section] 78s(d)(l) (2012), the SEC will only extend the thirty-day period of review of a determination of misconduct with a showing of extraordinary circumstances).

(160) In re Asensio, 2010 SEC LEXIS 2014.

(161) Id. at *19-20. Asensio argued that extraordinary circumstances existed when he was sanctioned because the two regulatory agencies of securities dealers, the National Association of Securities Dealers (NASD) and the New York Stock Exchange (NYSE), combined. Id. at *31. Asensio argued that the merger of these two agencies granted collateral estoppel effect to any determination of misconduct or sanctions because the NASD was the sole regulatory agency for securities dealers and there would be no method of review. Id. at *32-33.

(162) Id. at *19.

(163) Id. at *27-33.

(164) Id. at *35-36. The SEC declined to accept jurisdiction to rule on the securities dealer’s application for review and dismiss the appellant’s application. Id.

(165) In re Minton, 2002 SEC LEXIS 2712.

(166) Id. at *10.

(167) Id.

(168) Id. at *11.

(169) Id. at *15.

(170) In re Asensio, 2010 SEC LEXIS 2014, at *2734; In re Minton, 2002 SEC LEXIS 2712, at *910; see Asensio, 447 F. App’x 984 (holding that “no extraordinary circumstances justified extending the filing deadline”).

(171) See In re Cohn, No. M-5696, at 11.

(172) Lieberman, How Much Process, supra note 96 (explaining that states “provide a system of lawyer regulation that comports with what can be characterized as the minimal requirements of due process” on a case-by-case basis).

(173) Jeffreys v. Griffin, 801 N.E.2d 404, 407-408 (N.Y. 2003). The standard for invoking collateral estoppel to an administrative agency’s quasi-judicial determination in New York requires an identity of issue that was essential to the judgment and a full and fair opportunity to be heard in the administrative tribunal. Id.

(174) Jeffreys, 801 N.E.2d 404. In this case, the disciplinary committee for the New York State Department of Health’s Board for Professional Medical Conduct made a finding of sexual misconduct against Griffin while treating one of his patients, Jeffreys. Id. at 406. The issue in Jeffreys is whether the finding made by the disciplinary committee can be granted collateral estoppel effect and preclude Griffin from challenging the finding of misconduct. Id. Although this case discusses whether a finding in an administrative hearing can create estoppel against relitigating the issue in a civil trial, the physician would have had more of an incentive and opportunity to object to disciplinary action in the administrative hearing than a lawyer may have to object to disciplinary findings in the underlying civil action due to other conditions, such as loyalty to the client. The same equitable principles that the court reviews to determine whether collateral estoppel applies to the administrative hearing should be applied to attorney disciplinary proceedings.

(175) Id. at 408.

(176) Id.

(177) Id. (citing Staatsburg Water Co. v. Staatsburg Fire Disc, 527 N.E.2d 754, 756 (N.Y. 1988)).

(178) Id. (citing Allied Chem. v. Niagara Mohawk Power Corp., 528 N.E.2d 153, 155 (N.Y. 1988)).

(179) Id. (citing Allied Chem., 528 N.E.2d at 155).

(180) Id. at 409.

(181) Id. (citing People v. Roselle, 643 N.E.2d 72, 75 (N.Y. 1994)).

(182) Id. at 410 (internal quotation marks omitted).

(183) Id. at 407.

(184) Id. at 410.

(185) Id. In Jeffreys, the decision in the underlying civil action was entwined with the disciplinary proceeding. Id.

(186) Elamilton Interview, supra note 96; Maltz Interview, supra note 96; Ross Interview, Nov. 27, 2012, supra note 15.

(187) Maltz Interview, supra note 96.

(188) Id.

(189) Hamilton Interview, supra note 96; Ross Interview, Nov. 27, 2012, supra note 15. The attorney still has the right to appeal, however, he is giving up his appeal by placing his client’s interests above and beyond his own interests. Ross Interview, Jan. 7, 2013, supra note 97. In this sense, attorneys face a Hobson’s choice when placed in this situation. Id. The helplessness that disciplinary lawyers see in their clients who face such situations is a helplessness driven by a commitment to their clients. Ross Interview, Jan. 12, 2013, supra note 13.

(190) Ross Interview, Jan. 12, 2013, supra note 13; Model Rules of Prof’l Conduct R. 1.7 cmt. 1 (2012).

(191) n Ross Interview, Jan. 12, 2013, supra note 13; see also Maltz Interview, supra note 96 (stating that there are situations in which an attorney is disinclined or cannot realistically challenge a sanction).

(192) Hamilton Interview, supra note 96; Ross Interview, Nov. 27, 2012, supra note 15.

(193) See In re Cohn, No. M-5696, at 6.

(194) Ross Interview, Nov. 27, 2012, supra note 15; Maltz Interview, supra note 96.

(195) Ross Interview, Nov. 27, 2012, supra note 15; Maltz Interview, supra note 96.

(196) Maltz Interview, supra note 96.

(197) Ross Interview, Nov. 27, 2012, supra note 15; see, e.g., In re Abady, 800 N.Y.S.2d 651.

(198) Ross Interview, Nov. 27, 2012, supra note 15; Ryan, 467 N.E.2d at 491; Restatement (Second) of Judgments [section] 28(5)(c) (1982) (stating that the party against whom preclusion is sought “did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action” due “other special circumstances”).

(199) Ross Interview, Nov. 27, 2012, supra note 15.

(200) Maltz Interview, supra note 96; see also Lieberman, How Much Process, supra note 96.

(201) Maltz Interview, supra note 96.

(202) Ross Interview, Nov. 27, 2012, supra note 15; Restatement (Second) of Judgments [section] 28(5)(c) (1982).

(203) Ross Interview, Jan. 7, 2013, supra note 97; Restatement (Second) of Judgments [section] 28(5)(c) (1982).

(204) Ross Interview, Jan. 7, 2013, supra note 97. This would be a fact and equity driven standard. Id.

(205) Ross Interview, Nov. 27, 2012, supra note 15.

(206) Id.

(207) Ross Interview, Jan. 7, 2013, supra note 97.

(208) Hamilton Interview, supra note 96.

(209) Id.

(210) See, e.g, 22 N.Y. Comp. Codes R. & Regs. [section] 603.3.

(211) 22 N.Y. Comp. Codes R. & Regs. [section][section] 603.3(c)(1)–(3); see 22 N.Y. Comp. Codes R. & Regs. [section] 1022.22; see also 22 N.Y. Comp. Codes R. & Regs. [section][section] 806.19(d)(1)-(2); 22 N.Y. Comp. Codes R. & Regs. [section][section] 691.3(c)(1)–(2).

(212) 27 N.C. Admin. Code 1 B.0116(3)(C); 204 Pa. Code [section] 91.51 (3)(iii); 22 N.Y. Comp. Codes R. & Regs. [section][section] 691.3(c)(3), 806.19(d)(3).

(213) 27 N.C. Admin. Code 1B.0116(3)(D); Ala. Admin. Code r. 930-X-l-.23(4)(c).

(214) 204 N.Y. Comp. Codes R. & Regs. [section] 91.51 (3)(iii).

(215) Hamilton Interview, supra note 96; Ross Interview, Jan. 7, 2013, supra note 97; see 22 N.Y. Comp. Codes R. & Regs. [section] 1022.22 (stating “an affidavit stating any defense to the imposition of discipline and raising any mitigating factors” may be filed when facing reciprocal discipline).

(216) See Hamilton Interview, supra note 96; Ross Interview, Nov. 27, 2012, supra note 15.

(217) McShea Interview, supra note 17.

(218) Id.

(219) Id.

(220) Id.

(221) Ross Interview, Jan. 7, 2013, supra note 97.

(222) Ross Interview, Nov. 27, 2012, supra note 15.

(223) Id.

STATE BAR OF TEXAS
Office of the Chief Disciplinary Counsel

April 17, 2020

Joanna Burke
46 Kingwood Greens Drive
Kingwood, Texas, 77339

Re: 202002158
Joanna Burke – Mark Daniel Hopkins

Dear Mrs. Burke:

The Office of the Chief Disciplinary Counsel of the State Bar of Texas has examined your grievance concerning the above-referenced individual and determined that these allegations have been previously considered and dismissed by The Board of Disciplinary Appeals. Accordingly, this grievance has been dismissed as an Inquiry.

You may appeal this determination to the Board of Disciplinary Appeals. You must submit your appeal directly to the Board of Disciplinary Appeals by using the enclosed form. You have thirty (30) days from your receipt of this letter to appeal this decision.

In compliance with the Texas Rules of Disciplinary Procedure, the Office of the Chief Disciplinary Counsel maintains confidentiality throughout the grievance process. If you have any questions about the dismissal of your grievance, I can be reached at (877) 953-5535.

Sincerely,

Ed Hsu
Assistant Disciplinary Counsel EHH/srs
Enclosures: BODA Appeal Form

Cc:                   Mr. Mark Daniel Hopkins

P.O. Box 12487, Austin, TX 78711, (512) 427-1350, (877) 953-5535, fax: (512) 427-4167