51. It is a blanket admission by Emmerich Handler and by his attorney
Edward Rubin that the trial court erred on every key point of its March
13, 1997 decision.
52. First, the trial court found that Handler owned all of the shares of
4200 Avenue K at all material times. The corollary is that Jack Walker
had no interest in 4200 Avenue K to transfer to me. But Emmerich
Handler testified in Federal Court that Jack Walker indeed had an
interest in the shares at the time and that he did assign the shares to me.
53. Justice Douglass also held that my slander claim against Jack Walker
was "nebulous." But Emmerich Handler testified that it really happened
just as I said it did. Edward Rubin, Esq. testified to his conversation
with me following my settlement with Jack Walker. He stated that I had a
good claim against Jack Walker for "about $2 million dollars"4, such
that I should have settled with Emmerich Handler and pursued Jack
54. Justice Douglass found that what Jack Walker transferred to me was
a $4,000,000 building. But Emmerich Handler testified that Jack
Walker's interest was in a contract and not a building. 5
55. Finally, Emmerich Handler testified that his difficulties with me
arose because Jack Walker had transferred to me not only Walker's
shares in 4200 Avenue K Realty Corp., but Emmerich Handler's shares
as well. The testimony thus confirmed that indeed Walker had an interest
in the corporation to transfer to me6, contrary to the position taken by
Emmerich Handler at trial, and accepted by Judge Douglass, that
Handler had always owned all the shares in the corporation
and that Jack Walker had transferred nothing to me.
56. Emmerich Handler thus announced in United States District Court,
point by point, that Judge Douglass' March 13, 1997 decision in his favor
was completely wrong.
57. A further, and vital, corollary is that Justice Douglass' conclusion
that my acquisition of stock in 4200 Avenue K was unconscionable and
the product of overreaching and coercion was equally erroneously based
on allegations fabricated by Emmerich Handler and Jack Walker. It is
this conclusion that underlies Charge One herein-that I engaged in
conduct involving coercion and over-reaching reflecting (adversely) on
my fitness to practice law. 7
58. As a bottom line, there can be no doubt that Justice Douglas'
erroneous decision would not have occurred but for Plaintiffs' lies to the
59. Judge Robert P. Patterson, Jr. recognized the deceit as well. As
detailed in my affirmation in support of CPLR § 5015 motion attached
hereto as Exhibit "G", so egregious and bizarre was Emmerich Handler's
testimony before him that Judge Patterson concluded that the Handler
versions given in the champerty hearing about how he disposed of his
interest in 4200 Avenue K "have every indicia of tactics to
avoid Handler's creditors." (See MLE Realty Associates v. Handler,
2000 WL 218402 (S.D.N.Y.)). Judge Patterson recognized Handler's
fraud and referred the matter to the United States Department of Justice
for criminal investigation.
60. Judge Patterson's promise that he would not tolerate Emmerich
Handler's contempt of the judicial process precipitated the Handler
bankruptcy filing of May 8, 2000. The automatic stay of Bankruptcy
Code § 362 presently precludes my motion for reconsideration by Justice
61. Collateral estoppel is further not determinative of these proceedings
because plainly any factual issues so determined must be assessed with a
view to mitigation.
62. The purpose of these proceedings is first and foremost the protection
of the public from inadequate practitioners and preservation of
reputation of the bar. In re Zaslav (1 Dept. 1964) 21 A.D.2d 243, 250
63. The purpose of a hearing in mitigation is to ascertain whether
mitigating factors exist which should be considered by the court prior to
the imposition of discipline. Matter of Fisher (3 Dept. 1984) 105 A.D.2d
452, 480 N.Y.S.2d 255.
64. It is as much the duty of the Appellate Division to protect attorneys
against unjustifiable and malicious attacks upon their integrity and to
prevent the use of charges of professional misconduct to enforce claims
against members of the profession, as it is to discipline attorneys who
have been guilty of misconduct. In re Whitridge (1 Dept. 1914) 162 A.D.
884, 146 N.Y.S. 336. See, also, Matter of Brewster, 1877, 12 Hun 109.
65. I wish to establish that the public needs no protection from me.
66. I had intended to present evidence at an evidentiary hearing in
mitigation in this matter that this proceeding constitutes an effort by
Emmerich Handler to dissuade me from pursuing him as judgment
creditor with respect to approximately two million dollars in judgments I
hold against him, and to dissuade me from pursuing him, among others,
respecting matters arising from my claim to ownership
of 4200 Avenue K Realty Corp.
67. I had intended to present evidence at an evidentiary hearing in
mitigation in this matter that this proceeding constitutes an effort by
persons, including the law firms of Cleary Gottlieb, Steen & Hamilton
and Schlam, Stone & Dolan who have been, and in some instances are
still, my adversaries in seriously litigated matters to discredit me and
dissuade me from pursuing them.
68. Vital evidence on this issue can be had, I believe, only through the
testimony under oath of Emmerich Handler, Jack Walker, Robert
Saltzman, Esq., and Susan Korenberg, Esq.
69. My testimony on this issue is set forth herein.
The Charges In This Matter
70. The petition in this matter alleges, in pertinent part8, that I engaged in
conduct involving overreaching and coercion, and improperly acquired a
proprietary interest in the subject matter of litigation, in that:
1.In or about 1984, respondent represented Dr. Jack Walker (as a
principal of 4200 Avenue K Realty Corporation) in connection with an
action for specific performance involving property located at 4200
Avenue K, in Brooklyn, New York.
2.In exchange for a 20% interest in the stock of 4200 Avenue K
Realty Corporation, respondent agreed to prosecute an appeal from
the trial court's determination.
3.At or about the same time, in an unrelated matter, Dr. Walker
initiated suit against respondent in Nassau County, New York.
4.Respondent thereafter obtained from Dr. Walker the remaining
80% interest in the stock of 4200 Avenue K Realty Corporation.
5.Respondent acquired the remaining 80% interest in 4200 Avenue K
Realty Corporation, after threatening to sue Dr. Walker for libel,
slander and abuse of process in the Nassau County matter.
71. It is charged that by reason of the foregoing I
a) engaged in conduct adversely reflecting on (my) fitness to practice
law, in violation of Disciplinary Rule 1-102(a) (8) of the Lawyer's
Code of Professional Responsibility [22 NYCRR 1200.3],
previously Disciplinary Rule 1-102 (a) (6); and
b) violated Disciplinary Rule 5-103 of the Lawyer's Code of
Professional Responsibility [currently 22 NYCRR 1200.3](sic).
72. The petition alleges, in further pertinent part, that I engaged in
conduct prejudicial to the administration of justice, and engaged in
legal action serving merely to harass or maliciously injure another,
1.By order of the Hon. Simeon Golar, (Supreme Court, Queens
County) datedMarch 26, 1997, respondent's motion to set aside and
vacate an order dated March 27, 1989, setting aside a separation
agreement entered into between Israel Weinstock and Esther
Weinstock, was denied as untimely.
2.By order dated May 11, 1998, the Appellate Division, Second
Judicial Department, affirmed the March 26, 1997 order.
3.Respondent's appeal from the Supreme Court's order of March 26,
1997 was without merit, and was undertaken for the purpose of
harassing and maliciously injuring the opposing party.
73. It is charged that by reason of the foregoing, I
a) violated Disciplinary Rule 1-102(a) (5) of the Lawyer's Code of
Professional Responsibility [22 NYCRR 1200.3]; and
b) violated Disciplinary Rule 7-102(a)(1) of the Lawyer's Code of
Professional Responsibility [currently 22 NYCRR 1200.33].
74. These "factual issues" appear to be those that, by Order of this
Honorable Court, I am collaterally estopped from contesting.
The Mitigating Facts Of This Matter
75. This proceeding constitutes an effort by Emmerich Handler to
dissuade me from pursuing him as judgment creditor with respect to
approximately two million dollars in judgments I hold against him, and
to dissuade me from pursuing him, (among others), for damages arising
out of fraud and theft committed by him (and others) in connection with
4200 Avenue K Realty Corp. as well as other properties.
76. By letters of complaint dated August 25, 1997 and September 18,
1997 Emmerich Handler and Jack Walker complained to the Grievance
Committee respecting my representation of interests adverse to
Emmerich Handler in connection with 4200 Avenue K Realty Corp.
("4200 Avenue K").
77. At that time my appeal of the decision of Judge Lewis Douglass in
the case of Emmerich Handler, Jack Walker and the Kaminetzer Yeshiva
of Jerusalem v. Israel Weinstock (Kings County, Index No. 27600/86)
had not yet been argued. Plaintiffs commenced that case seeking a
declaratory judgment respecting ownership of 4200 Avenue K.
78. In March Judge Douglass issued a decision after trial that Emmerich
Handler owned all the shares of 4200 Avenue K.
79. Judge Douglass stated that even if Emmerich Handler did not own all
the shares of 4200 Avenue K, my claims to ownership acquired from
Jack Walker failed because the transactions by which I acquired the
shares were unconscionable and void.