Usherson v. Bandshell Artist Management

Background

The court had previously imposed monetary and non-monetary sanctions on Richard Liebowitz and the Liebowitz Law Firm, PLLC (LLF). Among other requirements, the earlier order required Liebowitz and LLF to serve the order on every current client, file it in currently pending cases brought by Liebowitz or LLF, and file it in actions filed within one year of the earlier order.

Liebowitz filed a declaration stating that he had served the order on LLF’s identified clients and filed it in all currently pending cases brought by him or LLF. He later filed additional declarations identifying cases in which he had failed to file the order and had complied only later. The court then required a sworn declaration addressing how those cases had been missed, how LLF’s client list was maintained, whether cases existed in which Liebowitz or LLF acted as counsel without formally appearing, and whether the earlier order should be expanded to cover those cases.

In his October 15, 2020 declaration, Liebowitz identified 113 cases in which he had been required, or arguably required, to file the earlier order but had not done so. The categories included cases missed during searches, cases listed as closed even though motions remained pending, cases that ceased to be pending during the relevant period, cases in which he mistakenly believed he was no longer counsel of record, cases in which he had not formally appeared or lacked filing credentials, and cases connected to LLF through a retainer agreement but handled by another lawyer.

Court’s Analysis

The court stated that the number of failures was astonishing and suggested either deliberate disregard of the order, an extremely disorganized case-management system, or both. It also considered Liebowitz’s prior sanctions and noncompliance with court orders. The court explained that the purpose of sanctions is deterrence, but concluded that it was far from clear that another sanction would deter Liebowitz.

The court also considered the Committee on Grievances’ November 30, 2020 amended order immediately suspending Liebowitz from practicing law before the Southern District of New York while disciplinary charges were pending. The attached committee order stated that the suspension was intended to protect the public during the disciplinary proceedings and would remain in effect pending their outcome and further court order. The committee order was issued by the Committee, not by Judge Furman in this opinion.

Ruling

Judge Furman, exercising the court’s discretion, determined that additional sanctions were not appropriate at that time. The court nevertheless modified the existing non-monetary sanctions to make clear that they applied whenever Liebowitz or LLF was involved as counsel, even without a formal notice of appearance.

For any action involving Liebowitz or LLF filed between November 30, 2020, and June 26, 2021, the court ordered Liebowitz or LLF to file a copy of this opinion and order on the case docket within two days after filing the complaint or otherwise initiating the action. If the action involved copyright-infringement allegations or claims, the complaint also had to attach deposit files maintained by the United States Copyright Office showing prior registration of the relevant copyrighted works. The court defined an action involving Liebowitz or LLF to include one in which they entered a notice of appearance or were involved as counsel without formally appearing. Finally, the court directed that a copy of the opinion and order be sent to the Chair of the court’s Grievance Committee for any action the Committee deemed appropriate.