florida bar rejection part ii it contains errors - they omitted facts

91, hereafter referred to as "T" followed by the page number) The applicant

testified that his conduct before the court did not reflect upon his current fitness to

practice law because he was "trying to be truthful to the court" in pointing out the

attorney's conduct. (T 91-92) The applicant admitted that his wife's attorney

asked for sanctions against him, but he denied ever paying any $100 fines. (T 91)

The applicant testified that he would not handle the situation the same way today.

(T 92)

The record contains documents in support of Specification 1(A). These

documents include the court's order issued on July 22, 1994. (Formal Hearing

Record-Office of General Counsel Exhibit 2, hereafter referred to as "FHR-

OGCE" followed by the exhibit number)

Based upon the evidence in the record, the board finds that

Specification 1(A) has been proven. The language of Specification 1(A)

reproduced above under the Findings Background is hereby adopted by the board

as its specific findings of fact. The board finds Specification 1(A) collectively

disqualifying for admission to The Florida Bar.

Specification 1(B) pertains to a November 18, 1994, Order of Contempt that

was entered against the applicant in his divorce case. Specification 1(B)(i) alleges

that the court's Order of Contempt was entered, in part, because the court issued an

order dated December 2, 1992, which prohibited the applicant from contacting his

wife's employer, New York University (NYU). It is alleged that the applicant

prepared a letter dated October 13, 1994, addressed to the President of NYU. The

applicant then sent a copy of the letter to the presiding judge in his divorce case.

The applicant either sent the letter to his wife's employer in violation of the court's

order, or he misrepresented facts to the court by indicating to the court, by copy of

the letter, that the letter had been sent to his wife's employer when it had not

actually been sent.

35

The applicant's Answer appears to admit that he was ordered not to contact

his wife's employer and that an order of contempt was entered. (FHR-BE 3) The

applicant admitted that he "reacted improperly," but he maintained that the court

was a hostile forum. (FHR-BE 3)

During the formal hearing, the applicant testified that he believed that the

judge in his divorce case was having ex parte communications with his ex-wife's

attorney. (T 94) The applicant stated, "And the only way I knew - - that's one - -

to determine if that was happening was I sent him a letter or I copied him on a

letter that I never sent to NYU." (T 94-95) The applicant testified that the judge

sent the letter to opposing counsel without informing him, and he believed that

doing so was ex parte communications. (T 95)

The applicant testified that he now understands that if he sends something to

a judge, the judge has a duty to send it to the other side. (T 95) The applicant

admitted that he was attempting to trick the court, and that his actions constituted a

fraud on the court. (T 96, 150) The applicant further admitted that his behavior

did not reflect positively on him. (T 150) The applicant maintained that he would

not do the same thing today. (T 96) He attributed his behavior to his being

emotionally tied into his divorce and being "upset." (T 98)

The record contains documents in support of Specification 1(B)(i). These

documents include the court's orders dated December 2, 1992, and November 18,

1994. (FHR-OGCE 2)

Based upon the evidence in the record, including the applicant's admissions,

the board finds that Specification 1(B)(i) has been proven. The language of

Specification 1(B)(i) reproduced above under the Findings Background is hereby

adopted by the board as its specific findings of fact. The board finds Specification

1(B)(i) collectively disqualifying for admission to The Florida Bar.

36

Specification 1(B)(ii) alleges that the court's November 18, 1994 Order of

Contempt alleged that the applicant told the court's law clerk that the judge in his

divorce case was crooked. By his Answer, the applicant indicated the following:

In part 1.(3)(ii), the judge accused me of saying that I called him a crook. lie acted more like a prosecutor than an impartial judge. This was an out of court statement, and it should not have been used as part of a contempt charge. In court, I said that I did not remember the exact words, since it was weeks in the past. I believe I responded that I was not sure, but it was similar to what Judge Zampino said I said on the record. This proceeding was more like an inquisition. There were several instances where the judge acted improperly in this case.?

(FHR-BE 3)


the board finds that Specification 1(B)(ii) has been proven. The language of

Specification 1(B)(ii) reproduced above under the Findings Background is hereby

adopted by the board as its specific findings of fact. The board finds

Specification 1(B)(ii) collectively disqualifying for admission to The Florida Bar.

Specification 1(B)(iii) alleges that the court's Order of Contempt issued on

November 18, 1994, alleged that during the November 18, 1994, hearing, the

applicant took papers off counsel table and threw them at the judge. By his

Answer, the applicant appears to deny the allegations in Specification 1(B)(iii).

(FHR-BE 3) During the formal hearing, the applicant denied throwing any papers

at the judge. (T 150-151) The applicant testified that he was trying to hand a

single piece of paper to the bailiff. (T 150) He stated, "And between me handing

it and the Bailiff getting it, it dropped. There was no intent to throw papers." (Id.)

The applicant's testimony acknowledged that the judge's affidavit said that the

applicant was throwing papers. (T 151)

Based upon the evidence in the record, the board finds that Specification

1(B)(iii) has been proven. The language of Specification 1(B)(iii) reproduced

above under the Findings Background is hereby adopted by the board as its

37

specific findings of fact. The board finds Specification 1(B)(iii) collectively


Specification 1(B)(iv) alleges that the court's November 18, 1994, Order of

Contempt alleged that the applicant continued to raise his voice while addressing

the court after the court admonished him on two occasions to not raise his voice.

By his Answer, the applicant appears to indicate that he raised his voice because

the judge repeatedly interrupted him. (FHR-BE 3) During the formal hearing, the

applicant testified, "As for raising my voice, I was emotional. And it's - - my

voice would go up and I think that would be normal if you're told sit down and

don't talk." (T 151)


the board finds that Specification 1(B)(iv) has been proven. The language of

Specification 1(B)(iv) reproduced above under the Findings Background is hereby


1(B)(iv) collectively disqualifying for admission to The Florida Bar.

Specification 1(B)(v) alleges that the court's November 18, 1994, Order of

Contempt alleged that the applicant stood at counsel table and struck the table

loudly, then threw his hands in the air and walked away from the counsel table

indicating that the court should put the applicant in jail. By his Answer, the

applicant admitted that he "acted exactly the way it is stated." (FHR-BE 3) The

applicant's Answer also states, "I did wake a sleeping baby when I slammed my

hand on the table." (Id.) The applicant attributed his behavior to his frustration

related to the judge's rulings in the case. (Id.)


the board finds that Specification 1(B)(v) has been proven. The language of

Specification 1(B)(v) reproduced above under the Findings Background is hereby

38


1(B)(v) collectively disqualifying for admission to The Florida Bar.

Specification 1(C) pertains to a March 24, 1998, Opinion filed by the

Superior Court of New Jersey Appellate Division ruling on the applicant's appeal

from his divorce case. This Specification contains excerpts from the court's

opinion that describe the applicant's approach to the divorce litigation. The court

indicated that the applicant filed a "steady stream of motions to the trial court,

motions to the trial court for reconsideration, unsuccessful appeals to this court,

motions to this court, and two complaints in the United States District Court for the

Southern District of New York, which we understand have been dismissed, in

which he joined not only the plaintiff but also her present husband, her mother, her

attorney, the children's therapist and the New Jersey Family Part judge who

presided over the custody and divorce trials."

The Superior Court also addressed the applicant's appeal of an order

emancipating his son. In discussing this issue, the court pointed out that the

applicant had previously sought an order declaring his son emancipated, and an

order had been issued declaring the applicant's son to be emancipated as of May

1997. Therefore, since the applicant received the very relief he sought, the court

declared the issue moot and declined to entertain the matter further.

The court also addressed the applicant's appeal of the denial of a

modification of child support. The court noted that the trial judge and the

applicant's ex-wife agreed that the applicant was entitled to a modification based

upon the emancipation of his son, but the applicant objected to the recalculation of

his child support obligation based upon his assertion that the Child Support

Guidelines were "fatally flawed and irremediably defective." Moreover, the court

observed that the applicant's modification was not denied on the merits, but based

upon the applicant's failure to comply with procedural rules.

39

The court observed that the applicant "steadfastly refused" to file a case

information statement, which must be filed before an order of child support may be

modified. The court noted that the applicant offered no explanation for his failure

to submit a current case information statement "other than his belief that the case

information statement is based on an 'economic model' as invalid as the

Guidelines themselves are asserted to be." (FHR-BE 2, page 7; FHR-OGCE 3)

The court ruled that it would not interfere with the lower court's insistence on the

applicant's compliance with the rules. The court stated, "If he wants relief, he

must follow the rules of court, and if he chooses to do so, the trial court will be

fully prepared to entertain his application." (FHR-BE 2, page 8; FHR-OGCE 3)

The court declined to review the applicant's assertions regarding the validity of the

Child Support Guidelines.

By his Answer, the applicant appears to deny the allegations in

Specification 1(C). (FHR-BE 3) During the formal hearing, the applicant testified

that the court's opinion contained "many errors." (T 84) The applicant was asked,

"So your basic defense to the Specification is that there were factual and illegal

mistakes in their decisions and that those should not be counted against you in the

application process today." (T 87) The applicant responded, "I - yes." (Id.)

A copy of the Superior Court of New Jersey Appellate Division Opinion

dated March 24, 1998, was introduced in support of Specification 1(C). (FHR-

OGCE 3)


Specification 1(C) has been proven. The language of Specification 1(C)


as its specific findings of fact. The board finds Specification 1(C) collectively


40

Specification 1(D) alleges that on August 13, 2004, the trial court issued an

order denying the applicant's motion for emancipation of his son and termination

of support. In denying the applicant's motion, the court noted that the applicant's

support obligation would continue until he filed a completed Case Information

Statement and other financial information that had been requested by the court

(and withheld by the applicant) since 1997. The applicant's Answer appears to

deny the allegations in Specification 1(D) in that the applicant stated that he did

not remember what happened in 2004. (FHR-BE 3)

During the formal hearing, the applicant admitted that he did not file a Case

Information Statement and that he had been told to do so more than once. (T 139-

140) The court's Civil Action Order dated August 13, 2004, was introduced in

support of Specification 1(D). (FHR-OGCE 2)


the board finds that Specification 1(D) has been proven. The language of

Specification 1(D) reproduced above under the Findings Background is hereby


Specification 1(D) collectively disqualifying for admission to The Florida Bar.

Specification 2 alleges that in 1992 the applicant filed a lawsuit in the United

States District Court for the Southern District of New York. This lawsuit was filed

against the Honorable Thomas Zampino, the state judge who presided during part

of the applicant's divorce proceedings; the applicant's ex-wife; Karin D. Haber, the

applicant's ex-wife's attorney; Ida Weisberg, his ex-wife's mother; and Tim

Ebsworth, an individual who was allegedly residing with the applicant's ex-wife in

their former marital home. The lawsuit was dismissed for lack of subject matter

jurisdiction and the court instructed the applicant to address his concerns to the

New Jersey Appellate Court. The applicant appealed the dismissal to the United

States Court of Appeals for the Second Circuit. The court denied the applicant's

41

appeal "as so lacking in merit as to be frivolous within the meaning of 28 U.S.C.

§ 1915(d)."

By his Answer, the applicant admitted that Specification 2 is correct, but

denied that it is complete. (FHR-BE 3) During the formal hearing, the applicant

testified that the events in Specification 2 took place "almost immediately" after

his divorce. (T 136) The applicant indicated that he was frustrated with the

court's ruling and he tried to file appeals in State Court, but "they sent them back."

(T 136-137) He further indicated that he filed his lawsuit based upon actions that

he thought were inappropriate. (T 137) He testified, "There were several other

actions in there that I felt weren't appropriate. And it may sound strange and

inappropriate now but at the time they, you know, did feel appropriate." (Id.)

The record contains documents in support of Specification 2. These

documents include the United States District Court for the Southern District of

New York Civil Docket Sheet, the Opinion and Order dated February 8, 1993,

filed in the United States District Court, Southern District of New York, and the

United States Court of Appeals' Order dated April 30, 1993, dismissing the

applicant's appeal. (FHR-OGCE 4-5)


the board finds that Specification 2 has been proven. The language of

Specification 2 reproduced above under the Findings Background is hereby


Specification 2 collectively disqualifying for admission to The Florida Bar.

Specification 3 pertains to a lawsuit filed by the applicant in the United

States District Court for the Southern District of New York in July 1994. The

applicant sued Karin Haber and Associates, the law firm of his ex-wife's attorney,

and Toby Kaufman, a psychologist that treated the applicant's son. This lawsuit

was dismissed as to all defendants for lack of subject matter jurisdiction. The

42

matter was dismissed as to the psychologist for lack of personal jurisdiction and

because her actions were privileged.

The applicant's ex-wife's attorney filed a Motion for Rule 11 Sanctions.

The court denied the motion because the applicant was a pro se litigant. However,

the court ordered that the applicant must notify the clerk of court before filing any

further actions related to his divorce case, or he would be subject to the sanctions

of dismissal of his action and appropriate monetary sanctions. The applicant

appealed the district court's decision to the United States District Court of Appeals

for the Second Circuit. The court dismissed the proceedings "as so indisputably

lacking in merit as to be frivolous within the meaning of 28 U.S.C. § 1915(d)."

The applicant's Answer to Specification 3 indicates that it is unclear to the

applicant what the board wanted him to respond to in Specification 3. (FHR-BE 3)

During the formal hearing, the applicant testified that he filed the lawsuit against

his son's psychologist because the psychologist submitted a letter to the court

saying that he was not mentally healthy and should be kept away from both of his

children. (T 134) The applicant testified that he felt that the psychologist acted

inappropriately in submitting the letter without speaking to him or his counselor.

(T 134-135) The applicant testified that he probably acted emotionally because he

had not seen his children on a regular basis for "probably two or three years." (Id.)

Based upon the evidence in the record, the board finds that Specification 3

has been proven. The language of Specification 3 reproduced above under the

Findings Background is hereby adopted by the board as its specific findings of

fact. The board finds Specification 3 collectively disqualifying for admission to

The Florida Bar.

Specification 4 alleges that in May 2001, the applicant filed a lawsuit in the

United States District Court for the District of New Jersey naming at least two state

judges, other court personnel, his ex-wife, and Karin D. Haber, his ex-wife's

43

attorney. It is alleged that the applicant engaged in improper, unprofessional, and

inappropriate conduct as evidenced by his conduct in Specification 4(A).

Specification 4(A) alleges that on June 1, 2001, the court dismissed the

applicant's complaint for failing to comply with filing and statutory requirements

of the federal False Claims Act, and the pleading requirements of Rule 8 of the

Federal Rules of Civil Procedure. The applicant subsequently filed two pleadings

in June 2001 which he entitled "Notice and Demand for Explanation, Clarification,

And Reconsideration As to Why This Action Was Dismissed Without An

Opportunity to Be Heard?" and "Certification in Support of The Notice And

Demand For Explanation, Clarification, And Reconsideration As to Why This

Entire Action was Dismissed."

Specification 4(A) further alleges that the applicant's Certification included

inappropriate, unprofessional, or improper statements with regard to the integrity

of the federal district court and the federal justice department. The applicant's

statements include the following language:

• ". . . the Justice Department in New Jersey failed to read the

complaint carefully" (FHR-BE 2; FHR-OGCE 7)

• "The Justice Department erred, was lazy, was politically motivated,

or acted unlawfully in covering up a criminal false imprisonment"

(Id.)

• "How many other people have been harmed by this courts failure to

properly review submissions, or the Justice Departments attempt to

cover-up criminal violations of law?" [Emphasis in original.] (Id.)

By his Answer, the applicant admits that "looking back, some of the

statements cited were inappropriate, and improper in a response requesting

reconsideration." (FHR-BE 3) However, he denies that his conduct was improper,

unprofessional, or inappropriate. (FFIR-BE 3) During the formal hearing, the

44

applicant testified, "I would agree that many of the comments weren't appropriate.

And at this point I wouldn't make those, especially not if I were a member of the

Bar." (T 126)

The record contains documents in support of Specification 4(A). These

documents include the United States District Court's Order dated June 1, 2001,

dismissing the applicant's Complaint, the applicant's Notice of Demand for

Explanation, and the Certificate filed in support of said notice. (FHR-OGCE 7)


the board finds that Specification 4(A) has been proven. The language of

Specification 4(A) reproduced above under the Findings Background is hereby


4(A) collectively disqualifying for admission to The Florida Bar.

Specification 4(B) concerns the United States District Court's Order dated

October 11, 2001, denying the applicant's Motion for Reconsideration. The

court's order describes the applicant's complaint as "rambling and disorganized,"

and "a confused 61 page amalgam of factual assertions, legal arguments, and legal

conclusions." (FHR-OGCE 7) The court asserted that the applicant's complaint

failed to "succinctly set forth the factual basis" for his claims and the legal causes

of action the applicant intended to assert based upon those facts. (Id.)

By his Answer, the applicant admits that "everything in the Specification is

correct" and that his responses were part of the record. (FHR-BE 3) However, he

alleged that the record is not complete. (Id.) The applicant's formal hearing

testimony acknowledged that the complaint he filed in the 2001 action was

confusing. (T 123-124) He further stated, "I recognized that I was wandering."

(T 127) The record contains the district court's Order dated October 11, 2001.

(FHR-OGCE 7)

45


the board finds that Specification 4(B) has been proven. The language of

Specification 4(B) reproduced above under the Findings Background is hereby


4(B) collectively disqualifying for admission to The Florida Bar.

Specification 5 concerns a lawsuit the applicant filed in the United States

District Court for the District of New Jersey in December 2003. It is alleged that

the applicant engaged in improper, unprofessional, and inappropriate conduct

during this litigation. The applicant sued his ex-wife; Sherry L. Silver, the

applicant's former wife's attorney; and the Honorable Maureen Sogluizzo, the state

court judge assigned to his divorce case.

Specification 5(A)(i) alleges that the applicant's ex-wife filed a Motion to

Dismiss in Lieu of Answer. The court granted the Motion and further ordered that

the applicant show cause why "his consistent failure to comply with the minimum

standards required for making representations to the Court has not violated

subdivision (b) of Rule 11" of the Federal Rules of Civil Procedure. In its Order,

the court cited 14 examples of what the court deemed "incoherent and

unsubstantiated legal assertions, accusations, and rhetorical questions." (FHR-

BE 2; FHR-OGCE 9)

Specification 5(A)(ii) alleges that in March and April 2004, the applicant's

ex-wife's attorney and the judge in the applicant's divorce case filed Motions to

Dismiss in Lieu of Answer. In May 2004 the court granted both motions. The

court's order of dismissal included an opinion addressing the applicant's

complaint. With respect to the applicant's claims against his ex-wife's attorney,

the court stated, "The cause of action the Plaintiff wishes to pursue is entirely

unclear." The court further stated that the applicant failed to provide "any factual

basis for these accusations whatsoever, let alone the particularity required by

46

Fed.R.Civ.P. 9." The court concluded that it "would be prejudicial to a defendant

to force a defendant to defend legal claims that neither they, nor this Court can

fully understand." (FHR-BE 2; FHR-OGCE 9)

Specification 5(A)(iii) alleges that on May 24, 2004, a hearing was held on

the Order to Show Cause referenced in Specification 5(A)(i) above. The court

issued an order that the applicant be sanctioned by the imposition of interest,

attorney's fees, and his ex-wife's costs in relation to defending the action. The

court issued an opinion accompanying its order in which it repeated examples of

what the court described as the applicant weaving "incoherent and unsubstantiated

legal assertions, accusations, and rhetorical questions" into "[a] nebulous theory

that [the applicant is] the victim of a conspiracy by the government and members

of the New Jersey Bar." (FHR-BE 2; FHR-OGCE 9)

The applicant filed for reconsideration of the court's order imposing

sanctions. On July 28, 2004, the court issued an opinion denying the applicant's

request for reconsideration. The court stated, "Plaintiff's motion fails to assert any

substantive claim for which this Court is able to grant the motion for

reconsideration. The motion merely offers multiple theories of fraud, misconduct

and deception by Defendants and this Court without any factual support." (FHR-

BE 2; FHR-OGCE 9)

The applicant's Answer admits the allegations in Specification 5(A) in part

and denies the allegations in part. (FHR-BE 3) In support of Specification 5, the

record contains the documents filed in the United States District Court litigation.

These documents include the Complaint filed by the applicant, the Motions to

Dismiss in Lieu of Answer filed by the defendants, and the district court's Orders

issued during the litigation. (FHR-OGCE 9)


Specifications 5(A)(i), 5(A)(ii), and 5(A)(iii) have been proven. The language of

47

these Specifications reproduced above under the Findings Background is hereby

adopted by the board as its specific findings of fact. The board finds these

Specifications collectively disqualifying for admission to The Florida Bar.

Specification 5(B) alleges that the applicant made inappropriate,

unprofessional, or improper statements in a letter to the judge in the United States

District Court lawsuit described in Specification 5(A). The applicant accused the

court of being "very short-sited [sic] in [its] sanctioning orders, [its] knowledge of

technology, and in [its] view of disputed facts." The applicant also stated, "When

attorneys misstate material facts regularly, and judges accept these misstatements,

the public view of the law is that it is not functioning " (FHR-BE 2; FHR-

OGCE 9)

By his Answer, the applicant admitted that the statements "were hostile and

did not belong in a motion for reconsideration." (FHR-BE 3) The record contains

a copy of the applicant's June 25, 2004, letter to Judge Cavanaugh of the New

Jersey United States District Court. (FHR-OGCE 9)


the board finds that Specification 5(B) has been proven. The language of

Specification 5(B) reproduced above under the Findings Background is hereby


Specification 5(B) collectively disqualifying for admission to The Florida Bar.

Specification 5(C) alleges that the applicant wrote a letter dated June 30,

2004, to the judge in the United States District Court lawsuit described in

Specification 5(A) that contained inappropriate, unprofessional, or improper

statements. The applicant stated, "I am shocked and dismayed when you say that

you do not believe what I said. If you believe that I perjured myself before you,

lease bring criminal charges against me!" (Emphasis in original.) (FHR-BE 2;

FHR-OGCE 9) The applicant's remarks also include the statement, "I do not know

48

what your religious background may be. However, if you do believe, you should

pray for your sins against me." (FHR-BE 2; FHR-OGCE 9)

By his Answer, the applicant admits, "some of the responses were

inappropriate." (FHR-BE 3) The record contains a copy of the applicant's

June 30, 2004, letter to Judge Cavanaugh of the New Jersey United States District

Court. (FFIR-OGLE 9)


the board finds that Specification 5(C) has been proven. The language of

Specification 5(C) reproduced above under the Findings Background is hereby


5(C) collectively disqualifying for admission to The Florida Bar.

Specification 5(D) alleges that, on appeal from the dismissal of the lawsuit

described in Specification 5(A), the applicant filed a pleading entitled "Request

for an extension in filing response briefs R 28(j) motion, Response to Briefs filed

In support of Defendants," in the United States Court of Appeals for the Third

Circuit. It is alleged that the applicant's pleading contained inappropriate,

unprofessional, or improper statements. The applicant's pleading included the

statements: "In life, a woman is pregnant, 100%. In law, there are no distinctions

between little and big lies. Lawyers are held to lower standards than non-

attorneys. Law is no longer a noble profession, but a business where

misstatements are regularly accepted." (FHR-BE 2; FHR-OGCE 10)

The applicant's Answer appears to deny the allegations in

Specification 5(D). (FHR-BE 3) The record contains the applicant's Request for

Extension filed by the applicant in the United States Court of Appeals for the Third

Circuit. (FHR-OGCE 10)


Specification 5(D) has been proven. The language of Specification 5(D)

49


as its specific findings of fact. The board finds Specification 5(D) collectively


Specification 5(E) pertains to the Third Circuit Court of Appeal's Opinion

affirming the district court's dismissal of the lawsuit described in

Specification 5(A). On July 13, 2005, the court issued an Opinion describing the

applicant's complaint as "incomprehensible" and failing to "succinctly set forth the

factual basis. . . ." (FHR-BE 2; FHR-OGCE 10) The court also stated, "There

simply was no legal or factual basis for this additional lawsuit for the reasons set

forth in the District Court's thorough opinions." (Id.) The court held, "We agree

with the District Court that there is no merit whatever to Eisenstein's allegations of

fraud, misconduct, and deception." (Id.)

The applicant's Answer indicates that he disagrees with the district court and

the appellate court. (FHR-BE 3) The record contains the United States Court of

Appeals' Opinion affirming the dismissal of the applicant's lawsuit described in

Specification 5(A). (FHR-OGCE 10)


Specification 5(E) has been proven. The language of Specification 5(E)


as its specific findings of fact. The board finds Specification 5(E) collectively


Specification 6 alleges that the applicant failed to comply with the federal

income tax laws. Specification 6(A) alleges that the applicant failed to timely file,

and timely pay, his income tax return for the 2006 tax year. As a result, the

applicant was assessed a penalty for filing the tax return after the due date and was

charged interest for late payment of taxes. Specification 6(B) alleges that the

applicant failed to timely file his federal income tax returns for tax years 2004 and

50

2005. Specification 6(C) alleges that, as of December 21, 2009, the applicant had

not filed his federal income tax returns for the 2007 and 2008 tax years.

By his Answer, the applicant admits the allegations in Specification 6 in part

and denies the allegations in part. (FHR-BE 3) The applicant admits that he was

assessed interest and penalties for the 2006 tax year, and that he did not timely file

his tax returns for 2004, 2005, 2007, 2008, 2009, and 2010. (FHR-BE 3)

During the formal hearing, the applicant testified that he filed his 2006 taxes

late, but he attributed his late filing to the fact that his divorce had not been settled

and many of the tax issues were in his name. (T 102) The applicant further

testified that in "some instances" he was just "very busy." The applicant was

asked, "Well, so taxpayers who are really busy can file their tax returns late?"

(T 103) The applicant responded, "We shouldn't. And I admit that but I do." (Id.)

The applicant admitted that he filed his 2010 taxes late and that he did not

file for an extension. (T 104) When asked why the applicant did not file for an

extension, the applicant stated, "I just didn't do it. For whatever reason I believe I

was busy on something else. I don't remember what it was but I didn't file it

timely." (T 104)

The record contained documents in support of Specification 6. These

documents include the applicant's Internal Revenue Service Transcripts for the

2004, 2005, and 2006 tax years and the applicant's 2007 federal income tax return.

(FHR-OGCE 11-12)


the board finds that Specifications 6(A), 6(B) and 6(C) have been proven. The

language of these Specifications reproduced above under the Findings Background

is hereby adopted by the board as its specific findings of fact. The board finds

Specifications 6(A), 6(B), and 6(C) collectively disqualifying for admission to The

Florida Bar.

51

Specification 7 alleges that the applicant's responses to Items 16.a., 16.b.,

and 16.c. of the Florida Bar Application concerning personal litigation were false,

misleading, or lacking in candor in that the applicant omitted court proceedings in

which he was a party. Specification 7(A) alleges the applicant's failure to disclose

Irwin R. Eisenstein v. Karin Haber and Associates, Toby Kaufman, filed in the

United States District Court for the Southern District of New York on July 18,

1994, as described in Specification 3 above. Specification 7(B) alleges that the

applicant did not disclose Irwin Eisenstein and Raymond Jacobs v. Alan Hevisi,

Carl McCall, Rudolph Giulani, George Pataki, Dennis Vacco, et al., filed in the

United States District Court for the District of New Jersey on April 2, 1998.

Specification 7(C) alleges that the applicant failed to disclose United States

of America ex.rel. Irwin Eisenstein, et al. v. The City of New York, Michael

Bloomberg, John Doe, and Jane Doe, filed in the United States District Court for

the Southern District of New York on January 17, 2003. Specification 7(D) alleges

that the applicant failed to disclose Irwin R. Eisenstein v. Miriam Ebsworth,

Maureen Sogluizzo, Sherry L. Silver, et al., filed in the United States District Court

for the District of New Jersey on December 10, 2003, as described in

Specification 5 above. Specification 7(E) alleges that the applicant failed to

disclose John Middleton, Sonny Southerland, and Irwin Eisenstein as Next Friends

v. Attorney General of the State of New York and Corporate Counsel of the City of

New York, filed in the United States District Court for the Eastern District of New

York on May 21, 2004.

By his Answer, the applicant appears to admit the allegations in

Specification 7 in part and deny the allegations in part. (FHR-BE 3) During the

formal hearing, the applicant testified, "I think in Specification 7 it said that I had

omitted some of the actions that I was involved in and I did." (T 105) The

applicant alleged that he looked himself up on Lexis and provided the board with

52

all of the cases that appeared on Lexis. (Id.) The applicant testified that some of

the actions he was accused of failing to disclose were discussed at his initial

hearing. (Id.)

The applicant testified that he could not remember if he disclosed the lawsuit

described in Specification 7(A). (T 108-110) With respect to Specification 7(B),

the applicant testified "7(b) I didn't send in . . . I forgot that." (T 107) As to

Specification 7(C) the applicant testified that he "may not" have sent the board the

district court action, but he "may have" sent in the appellate action and his

response in the appellate action. (T 106)

With regard to Specification 7(D) the applicant testified, "I sent the Florida

Board the case noted in 7(d) although this is not listed in my application. It was

included in Item 16(f) of my application." (T 114) As noted above,

Specification 7(E) pertains to a lawsuit in which the plaintiffs filed suit "as Next

Friends." During the formal hearing, the applicant testified concerning an action

where "people functioned" as "an ex-friend," and testified that he did not

remember the action because the action was filed by another person. (T 112, 171)

On cross-examination, the applicant admitted that the lawsuit in

Specification 7(E) should have been disclosed in response to Item 16.b. of the bar

application since the applicant was identified as a petitioner in the action. (T 174-

176) It was also noted that the investigative hearing took place approximately 15

months after the applicant submitted his bar application. (T 167) The applicant

acknowledged that it was possible that the board had documentation of the lawsuits

described in Specification 7 at the investigative hearing because the board asked

the applicant about the lawsuits during the 15 months after submission of his bar

application, and prior to the investigative hearing, and the applicant provided

information subsequent to the board's inquiry. (T 168-169)

53

The applicant's formal hearing testimony indicated that the applicant

completed his Florida Bar Application while he was on chemotherapy. (T 118)

The applicant testified that he was very tired, and it was possible that he missed

some of the items on the application. (T 42-43, 118) The applicant also sent a

letter to the board's then-Deputy General Counsel dated May 3, 2011, in which he

stated, "I was taking medication that made me extremely sleepy during the time I

filed my application. As a result, I may have omitted some cases." (FHR-

OGCE 16)

On cross-examination, the applicant was asked, "Do you think the fact that

you were on some medication that made you sleepy is a justifiable reason for

omitting something from your application." (T 217) The applicant responded, "If

I made a good faith effort, then I believe it might be, yes." (Id.) The applicant

admitted that his explanation would not be an appropriate explanation to give to a

judge as a reason for omitting information from a pleading filed in court.

(T 217-218) The applicant further admitted that he did not think that it was

appropriate for him to fill out his bar application while he was on medication that

apparently influenced him. (T 218)

The record contains civil docket sheets and pleadings filed in the United

States District Courts of New York and New Jersey for the lawsuits referenced in

Specification 7. (FHR-OGCE 10, 13-15)


the board finds that Specifications 7(A), 7(B), 7(C), 7(D), and 7(E) have been

proven. The language of these Specifications reproduced above under the Findings

Background is hereby adopted by the board as its specific findings of fact. The

board finds Specifications 7(A), 7(B), 7(C), 7(D), and 7(E) collectively


54

The applicant pled the affirmative defense of rehabilitation. The applicant

introduced 43 exhibits into evidence. (Formal Hearing Record-Applicant

Exhibits 1-37, 39-44; hereafter referred to as "FfIR-AE" followed by the exhibit

number) The applicant's exhibits included 15 character letters and affidavits, two

petitions filed in the United States Supreme Court, and correspondence between

the applicant and the board concerning the release of character letters written to the

board and the issuance of a subpoena on the applicant's behalf. (FHR-AE 2-18)

The applicant's exhibits also include a brief filed by the applicant in the

United States Court of Appeals for the Second Circuit dated September 18, 2007,

and a January 22, 2007, decision of the Superior Court of New Jersey Appellate

Division with the applicant's added editorial comments. (FHR-AE 19-20) The

applicant's exhibits further include correspondence from the Superior Court of

New Jersey to the board dated June 15, 2010, and correspondence between the

board and the applicant concerning the retrieval of records pertaining to the

applicant's prior litigation proceedings, the status of his bar application and

corresponding investigation, and the scheduling of the formal hearing. (FHR-

AE 21-37, 39-44)

The applicant also presented the testimony of four witnesses. Waleska

Rodriguez testified on the applicant's behalf. (T 287-292) Mrs. Rodriguez

graduated from law school in 2008, but has not taken the bar because she

graduated from a non-accredited law school. (T 293-294) Mrs. Rodriguez first

met the applicant in 2004 when she was a long-distance student from a law school

in California. (T 288)

Mrs. Rodriguez testified that the applicant served as her mentor. (Id.) She

stated that the applicant helped her to learn English, complete her outlines and law

school homework, find jurisdictions where she was qualified to take the bar

examination, and assisted her when she took the "baby Bar" in California. (T 288-

55

289, 294) She testified that the applicant also helped her children with education

and math. (T 289) Mrs. Rodriguez described the applicant as extremely honest,

giving, and extremely reliable. (T 289-290) She also testified that she has never

seen the applicant get angry or "blow up," and she considers him to have "very

high" moral standards. (T 289-290) Mrs. Rodriguez was not aware of the content

of the Specifications filed against the applicant. (T 292)

Sara Grimes also testified on the applicant's behalf. (T 296-309)

Ms. Grimes met the applicant four or five years ago in the Barry University Law

Library where she researched a personal injury action she was involved in. (T 297-

298; 310) She testified that the applicant has served as a mentor for her and

provided her with instructions on looking up case law. (T 297) She further

testified that the applicant has assisted her by looking over papers she has written

and suggesting correct legal terminology. (T 297) Ms. Grimes said that these

papers included papers that she might file in her personal injury case. (T 312)

Ms. Grimes state that she has observed the applicant assisting others in the law

library at Barry University. (T 299)

Ms. Grimes testified that the applicant is very level-headed and she has

never seen the applicant get overly excited. (T 301) She stated that the applicant

has a passion for the law and she thinks that he sometimes gets too broad and they

have "almost a too long discussion" and can get "sidetracked" with the discussion

of an issue. (T 302) Ms. Grimes stated that she believes that the applicant's past

behavior was influenced by the difficulty of his divorce. (T 308) She testified that

she has seen a lot more relaxation and calmness in the applicant over the years.

(T 308-309) She stated that she considers the applicant to be honest, ethical, and

trustworthy. (Id.)

Ms. Grimes testified that she did not know "the whole detail" about the

issues before the board. (T 308, 313) She indicated that she believed that the

56

issues concerned the applicant's taxes and discrepancies about child support.

(T 313-314) She testified that she may have "glanced - - looked through" the

Specifications. (T 315) She further testified that the applicant has told her that he

has been frustrated that the bar admission process has taken so long. (T 315)

The applicant also presented testimony from Myriam Pagan. (T 321-332)

Ms. Pagan has been a member of The Florida Bar since April 2010. (T 320) She

met the applicant in law school in 2005. (T 321) Ms. Pagan testified that she

considers the applicant to be a "very dear trusted friend." (T 322) Ms. Pagan

stated that she observed the applicant interact with teachers and students during

law school and he was never disrespectful. (T 322) She further testified that she

observed the applicant assisting students. (T 323) She said that the applicant

assisted her by providing her with several outlines for a civil practice course that

she found difficult. (T 323-324)

Ms. Pagan testified that the applicant's ethical standards are of the highest

caliber and he would be a valued member of The Florida Bar. (T 324-325) She

stated that she trusts the applicant unequivocally and believes he has high moral

standards. (T 330) Ms. Pagan used the words honesty, perseverance, passionate,

committed, and eccentric to describe the applicant. (T 330-332) When questioned

by the board, Ms. Pagan indicated that she believed that the applicant was capable

of grasping and following procedural rules. (T 340-341)

The applicant also presented the testimony of Shannon Murrill Kelly.

(T 343-355) Mr. Kelly is a member of the Kentucky Bar Association. (T 342-343)

Mr. Kelly went to law school with the applicant. (T 343) He described his

relationship with the applicant as "very close friends." (T 344) Mr. Kelly has also

worked on projects with the applicant, including Mr. Kelly's "senior paper," a

letter that Mr. Kelly wrote to his law school administration, a brief filed in the

Fourth Circuit Court of Appeals, and a Writ of Certiorari filed in the United States

57

Supreme Court. (T 344-345, 348) Mr. Kelly also testified that the applicant

assisted him by filming Mr. Kelly's graduation ceremony and his swearing in

ceremony in Kentucky. (T 345, 347)

Mr. Kelly testified that he has known the applicant to assist others. (T 346)

Mr. Kelly said that the applicant has assisted other law students, attorneys, and pro

se litigants research and edit certain documents. (Id.) Mr. Kelly also testified that

the applicant is honest and trustworthy, and treats people with courtesy and

respect. (T 349-350) Mr. Kelly stated that he was not aware of any factors that

might prevent the applicant from being a good attorney. (T 351) He said that he

considers the applicant reliable and described the applicant's research skills as

"excellent." (T 354)

Mr. Kelly testified that the applicant told him that the applicant felt that he

was being treated unfairly by the board. (T 360-361). Mr. Kelly further testified

that the applicant described that the applicant felt that the board's "procedure was

arbitrary, capricious and to some extent he felt he was being discriminated

against." (T 361) Mr. Kelly said that the applicant felt that he was being

discriminated against on the basis of his age. (Id.)

The applicant also testified on his own behalf in an effort to demonstrate his

rehabilitation. The applicant testified that he took a course at the City of New

York Bar Association to represent the homeless and those who are indigent.

(T 153) The applicant further testified that he handled "six or eight" pro bono

administrative cases between 2002 and 2004 and he would take off from work to

meet his clients at administrative hearings. (Id.)

The applicant bears the burden of establishing his rehabilitation by clear and

convincing evidence pursuant to rule 3-13 of the Rules. The board finds that the

applicant has failed to prove his lack of malice and ill feelings towards those who,

by duty, were compelled to bring about the disciplinary, judicial, or administrative

58

proceedings against him, as required by rule 3-13(d) of the Rules. The applicant

commented in his opening statement, ". . . I really have difficulty accepting that the

case against me was done purely without malice." (T 57) The applicant

subsequently admitted that, based upon his prior statement, it would be reasonable

to conclude that he has malice and ill feelings towards the board's Office of

General Counsel. (T 258) The applicant ultimately denied that he holds any

malice towards the General Counsel; however, he testified that he "might feel a

certain amount of malice against the Executive Director." (T 280) The board finds

that the applicant's correspondence with the board further demonstrates malice and

ill feelings towards the board's staff. (T 210-216, 219-233; FHR-OGCE 16, 19;

FHR-AE 21, 23-37)

Additionally, the board finds that the applicant has managed his bar

admission case utilizing the same methods employed during his divorce litigation.

The applicant has refused to follow the Procedures for Formal Hearing Before the

Florida Board of Bar Examiners (the Procedures). The applicant admitted that he

received the Procedures when the Specifications were filed in March 2011.

(T 243) The applicant failed to bring seven copies of his exhibits 39-44 to the

formal hearing. (T 70-71) The applicant testified that he understood that the rules

required him to bring seven copies, but he "just didn't do that." (T 75-76) The

applicant also ignored the Procedures with respect to the definition of "exculpatory

evidence," and chose instead to rely on Black's Law Dictionary. (T 188-200)

Further, the applicant listed the General Counsel as a witness, but failed to

request a subpoena for his appearance at the formal hearing as required by the

Procedures. (T 234-235, 244) The applicant admitted that he was informed on

several occasions that he was required to request a subpoena, and that he was

directed to the Procedures in several letters from the Executive Director.

(T 244-245; FHR-OGCE 16, 19-20) The applicant was asked why his failure to

59

request a subpoena was any different from the conduct alleged in the

Specifications where courts told the applicant what he was supposed to do and he

persistently refused. (T 249) The applicant responded, "Why is that any different?

Well, I don't know if it is." (T 249-250)

The board also finds that the applicant's pleadings and correspondence

submitted to the board throughout the admission proceedings do not demonstrate

the applicant's good reputation for professional ability, which is an element that

must be proven in order to demonstrate the applicant's rehabilitation pursuant to

rule 3-13(c) of the Rules.

Upon consideration of the applicant's formal hearing presentation, the board

finds that his evidence failed to establish rehabilitation by clear and convincing

evidence as required by rule 3-13 of the Rules.

CONCLUSIONS OF LAW

Having engaged in disqualifying conduct, the burden was on the applicant to

demonstrate his rehabilitation pursuant to rule 3-13 of the Rules. As noted in the

board's Findings above, the board finds that the applicant failed to produce clear

and convincing evidence of rehabilitation.

The Supreme Court of Florida has outlined the type of community or

charitable activities that the court views as strong evidence of positive action

showing rehabilitation. The Court has held:

The Rules contemplate and we wish to encourage positive actions beyond those one would normally do for self benefit, including, but certainly not limited to, working as a guardian ad litem, volunteering on a regular basis with shelters for the homeless or victims of domestic violence, or maintaining substantial involvement in other charitable, community, or educational organizations whose value system, overall mission, and activities are directed to good deeds and humanitarian concerns impacting a broad base of citizens. Florida

60

Board of Bar Examiners re ML.B., 766 So. 2d 944, 998-999 (Fla. 2000)

The board finds that the applicant's community service efforts are

insufficient in scope and quantity. The applicant's activities do not fully embrace

the concept of community or charitable activities referenced by the Court in M.L.B.

Although the applicant testified that he represented homeless and indigent pro se

litigants in administrative hearings pro bono, those activities took place between

2002 and 2004, and were not documented. Moreover, the applicant did not

provide documentation of the amount of time donated to his other community

service efforts. Mere statement of positive acts without supporting documentation

is not sufficient to demonstrate clear and convincing evidence of rehabilitation.

Florida Board of Bar Examiners re John Doe, 770 So. 2d 670, 675 (Fla. 2000).

It is, therefore, the conclusion of the board that the insufficiency of the

applicant's showing of rehabilitation clearly and unequivocally establishes that the

applicant fails to meet the standards of conduct and fitness required under the

provisions of rule 3 of the Rules.

RECOMMENDATION

The board recommends that Irwin R. Eisenstein not be admitted to The

Florida Bar under the provisions of rule 5 of the Rules and that he be disqualified

from reapplying for admission for a period of two years from the date of these

findings.

61

DATED this 10th day of October, 2012.

Michele A. Gavagni Executive Director Florida Board of Bar Examiners

Copies: Irwin R. Eisenstein, Applicant Robert G. Blythe, Office of General Counsel

CERTIFIED MAIL NO.: 7012 1010 0002 1993 0745 RETURN RECEIPT REQUESTED

florida bar rejection part ii it contains errors - they omitted facts

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