March 25, 2020 Adventures in the Law

When You’re in a Hole, Stop Digging

By Norm Tabler

Most of us had learned by grade school that when you’ve dug yourself into a hole, the wisest course is to stop digging. Maybe it happened when you told your sixth-grade teacher the dog ate your homework, and she called your bluff, threatening to call your mother. You could have responded with yet another lie (maybe that your mother passed away?), but even at age eleven you knew to cut your losses and admit you hadn’t done your homework, and maybe that you didn’t have a dog.

Apparently, New York attorney Richard Liebowitz never learned this lesson. He skipped an April 12 discovery conference in a federal case without notifying the court or opposing counsel. When the judge demanded an explanation, he said there had been “a death in the family.”

The judge was aware of Leibowitz’s questionable reputation for truthfulness and had observed some misrepresentations in the case at hand. She ordered him to provide documentation of the death: Who died, when, and how was Liebowitz notified?

Liebowitz’s maternal grandfather had, in fact, recently died—but on Friday, April 9, not Monday, April 12. That would likely constitute an acceptable excuse for missing the conference. But Liebowitz needed an excuse failure to give notice, as well as absence.

At this point Liebowitz was like the sixth-grader whose teacher threatened to call his mother. He could come clean, admit his deception, and apologize. Or he could keep digging.

Liebowitz chose the latter. Over the next several months he continued to submit letters and “Declarations” stating that his grandfather had died the morning of the April 12 and that he had been needed to assist with certain arrangements that had to be made before the next Sabbath.

The judge remained suspicious, repeatedly advising Liebowitz that his filings did not satisfy her order. He responded by arguing that the filings did satisfy the order.

Out of patience, the judge ordered Liebowitz “under pain of contempt” to provide a death certificate. He kept digging, refusing to provide the certificate because it was “a personal matter.”  

The court set a deadline and warned that failure to meet it would result in a contempt citation, financial sanctions, and referral to the court’s grievance committee.

Leibowitz doubled down, swapping his shovel for a backhoe. He submitted a statement declaring that the order to produce the death certificate was “unlawful” and “likely constitutes a usurpation of judicial authority or a breach of decorum”; that his earlier submissions satisfied the court’s orders; that “there [was] no basis to impose monetary sanctions”; and that the court’s assurance that the death certificate would not be made public was insufficient to protect his privacy.

The court declared Leibowitz in contempt, ruled that failure to provide the death certificate by October 2 would trigger a sanction of $100 per business day, with the first payment due October 7. When he failed to produce the death certificate or make the October 7 payment, the court declared him in contempt of two orders and raised the daily fine to $500. He was ordered to appear and show cause why he shouldn’t be jailed until he complied with the orders. The court warned that failure to appear would mean arrest by U.S. Marshals.

Liebowitz appeared at the appointed time, flanked by two criminal defense lawyers. Did he own up to his deceit? Of course not. He offered the explanation that his words and actions were not “intentful.” Why not? Because he “was in a daze” following his grandfather’s death.

The judge scoffed at the explanation, calling it “completely implausible,” noting that the alleged daze had lasted some seven months. She reported Liebowitz to the grievance committee for possible disciplinary action and noted that he was required to disclose her contempt rulings to other courts and prospective clients.

Liebowitz now faces a mountain of problems that could cripple or even end his legal career--not because he skipped a conference without notice, or even because he lied about the reason, but because when he was caught in his first lie, he just kept digging.

The underlying case is Berger v. Imagina Consulting, S.D.N.Y.

Author

Norm Tabler is a retired lawyer in Indianapolis. He serves on the editorial advisory boards of the ABA Senior Lawyers Division’s Voice of Experience and the ABA Health Law Section’s The Health Lawyer and is host of the American Health Lawyers Association’s podcast, The Lighter Side of Health LawEmail Norm.

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