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January 2019 - Wishing Well

by Richard W. Millar, Jr.

I don’t know the origin of the phrase, “Be careful what you wish for.” One version is “Be careful what you wish for, lest it come true.” The phrase has been attributed to “The Monkey’s Paw” by W.W. Jacobs, published in 1902. Others have attributed it to Goethe, which would put it a hundred or so years earlier. Others say it was an old Chinese proverb, and some say it is an old Yiddish curse.

It is fair to say that no one really knows where the saying came from although several cultures seek credit and it has been around a long time.

Longer even than me.

Its staying power over the years is its essential truth. Sometimes when you make a wish, you don’t really think through the possible consequences which, inevitably, are not as good as anticipated.

It can happen to all of us, and lawyers are not immune.

It will come as no surprise that I have an example. (My father often used to say that “If you can’t do much of anything in life, you can at least serve as a bad example,” which I suppose is a perverse variant of “Every dog has its day.”)

All of this brings me to one David Evan Schorr. He represented himself, which is always a questionable idea, in his own divorce proceedings, which is an even worse idea. During a hearing before Justice Deborah Kaplan, he secretly recorded the proceedings using video button on his iPhone. The video part was a non-starter since the phone was in his pocket, but apparently he got the audio. This was prohibited by 22NYCRR 239.1, which, whatever that is, governs New York where the divorce was being heard.

I am not sure how the recording came to light, but I am guessing he may have used it in lieu of a reporter’s transcript in some later hearing. In any event, he was brought before the Attorney Grievance Committee (AGC), who took a dim view of it, finding that he had violated a couple of rules that constituted conduct prejudicial to the administration of justice. It issued a private admonishment.

Mr. Schorr did not follow the age-old advice of “Quit while you’re ahead,” or even Millar’s corollary, “Quit while you are only a little bit behind.”

He rejected the private admonishment and demanded formal proceedings be instituted, bringing “Be careful what you wish for” into full relief.

Thereafter, when the Commission sought to take his deposition, he filed a separate lawsuit against the AGC in federal court to enjoin the investigation. He alleged that the AGC unlawfully re-opened its investigation in retaliation for his exercising his right to reject the private admonishment and requesting a formal hearing. Unsurprisingly, the district court dismissed his complaint for failure to state a claim and, under the abstention doctrine, that a federal court should not enjoin criminal proceedings in a state court.

Of course, Mr. Schorr appealed. And, unsurprisingly, considering the trajectory Mr. Schorr was on, the district court judgment was affirmed.

That meant that the case devolved back to the Appellate Division of the New York Supreme Court. By this time, Mr. Schorr had thrown in the proverbial towel and joined the Attorney Grievance Committee for discipline on consent. It also meant that several new facts were established: (1) Mr. Schorr had accused Justice Kaplan and others of perjury for denying they had “orchestrated a civil assault against him”; (2) he filed a meritless lawsuit against a court-appointed psychologist in his custody battle; (3) he accused a court-appointed financial expert of bias in connection with the divorce evaluation of Mr. Schorr’s insurance business; (4) he set up websites on which he accused his wife’s lawyer of perjury; and (5) he accused the Attorney Grievance Committee of retaliation at the behest of an Administrative Judge.

To his credit, mitigating evidence was also considered.

The Appellate Division of the Supreme Court ruled that: “Accordingly, the parties’ joint motion for discipline should be granted and respondent publicly censured.”

Mr. Schorr showed them. He successfully avoided private censure on a limited record that no one would see, and helped establish two published opinions and a public censure with additional aggravated facts.

He got what he wished for.

Richard W. Millar, Jr. is Of Counsel with the firm of Friedman Stroffe & Gerard in Irvine. He can be reached at rmillar@fsglawyers.com.