New York attorney David Schorr was publicly censured on October 30, 2018, for recording a court proceeding in his own Domestic Relations case. Such recording is a violation of 22NYCRR 1200.0, Rule 8.4(d) (conduct prejudicial to the administration of justice) of the New York Rules of Professional Conduct.
Although admitted to the NY bar in 2000, Mr. Schorr practiced law only a short time before joining his family’s business. In 2013, while acting pro se in his own divorce proceeding, Schorr covertly made a recording of a court conference before Justice Deborah Kaplan. Schorr rejected the Attorney Grievance Committee’s private admonition to him for violating Rule 3.3(f)(3) (intentionally or habitually violating any established rule of procedure of a tribunal) and Rule 8.4(d). During the formal proceedings that following, the Attorney Grievance Committee sought to examine him under oath. Schorr filed suit against the Attorney Grievance Committee in federal court seeking to enjoin the Attorney Grievance Committee from doing so. The Southern District dismissed the action, and the Second Circuit affirmed.
Thereafter, the Attorney Grievance Committee filed a motion to give collateral estoppel effect to the Second District’s ruling, which determined that Schorr’s recording violated Rule 8.4(d). Conduct to which the parties stipulated was that Schorr accused Justice Kaplan, her law secretary and a court officer of perjury in denying that a civil assault had been orchestrated against him. He accused the Attorney Grievance Committee of retaliating against him in federal court filings on the behest of former Administrative Judge A. Gail Prudenti. He brought a lawsuit that lacked merit and filed suit against a court-appointed psychologist in connection with the custody of his child. He alleged bias against a financial analyst appointed to evaluate Schorr’s insurance business’s worth. He set up an internet website disparaging his opposing counsel, accusing him of lying under oath.
With the stipulation of all of that misconduct, it is amazing that the Supreme Court of New York’s Appellate Division agreed that his sanction would be a censure. I cannot imagine such conduct resulting in such a light sanction unless, of course, there was some merit to Schorr’s allegations. Equally puzzling is why it would ever be against any court or ethics rule to record a court proceeding. Like Ohio, New York courts are open to the public (N.Y. Const., Article 1, Sections 2, 6). Judges are public officials. Nothing that happens in a court proceeding should be private or hidden. That is the reason for open courts. Judges behaving within the bounds of the Rules of Judicial Conduct should have no problem with court proceedings being recorded. Indeed, many courts record proceedings themselves. And this day and age of iphones, pens and other devices that easily can record, what is the harm in allowing a public proceeding to be recorded.
As mitigating factors, the parties stipulated that Schorr had no prior discipline. He presented competent, credible evidence of his good character. After returning to the practice of law, Schorr represented clients in domestic relations litigation where he has shown himself to be “a sober and reasonable advocate, eschewing rather than creating conflict.” (Sober is used here as calm, restrained. There was no evidence or suggestion of alcohol abuse.) He represents his clients with great patience and dedication, earning these clients’ trust and gratitude.
It is clear that Schorr became indignant and lost his composure in representing himself pro se in his own divorce proceeding. However, equally clear is that this was not the manner in which Schorr normally conducted himself. By all accounts, his behavior in his own case appears to be uncharacteristic of him. It may be that the moral of the story is that one who represents himself has a fool for a client as Abraham Lincoln said. Nevertheless, one must wonder at what would compel an admittedly calm, even-tempered, respected and respectful attorney to behave so. Perhaps it just goes to show that everyone has their limits. It is refreshing to see a court take a measured approach to discipline in situations such as this one. The full opinion can be found at In re Schorr, 2018 BL 399860, N.Y. App. Div., 10/30/18.