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Irrevocable Trust of Anthony J. Antonious v. Tour Edge Golf Manufacturing

April 17, 2011

IRREVOCABLE TRUST OF ANTHONY J. ANTONIOUS, PLAINTIFF,
v.
TOUR EDGE GOLF MANUFACTURING, INC., DEFENDANT.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:

MEMORANDUM OPINION AND ORDER

The Court, in separate orders, directed two attorneys in this case to show cause why they should not be sanctioned in connection with the submission of a motion to appear pro hac vice that contained false statements regarding the background of one of the attorneys. Both attorneys have responded. In this decision, the Court considers their submissions.

Facts

This is a patent infringement case that was transferred to this district from the Central District of California. It involves a patent for the design of a golf club head. Two attorneys filed the complaint in the Central District of California: Melvin K. Silverman, whose office is in Newark, New Jersey, Sepehr Daghighian, whose office is in Beverly Hills, California. Silverman has been a lawyer since 1970; Daghighian has been a lawyer since 2005.

The complaint reflected that Silverman had filed an application to appear pro hac vice. Silverman later had to refile his application after the judge struck his original application because he had not paid the required fee. The form application contained this statement: "I am not currently suspended from, and I have never been disbarred from practice in any court." Docket No. 12 at 2. He attached a certificate of good standing from the Supreme Court of New Jersey. Id. at 3. In the application, Silverman designated Daghighian as local counsel, and Daghighian signed to reflect his consent to that designation. Id. at 2. The judge granted Silverman's application.

On August 31, 2010, a different judge in the Central District of California, to whom the case had been reassigned, granted the defendant's motion to transfer the case to this district. Motions to appear pro hac vice were filed in this district on behalf of both Silverman and Daghighian on September 24, 2010, about three weeks after the case was transferred here. A local attorney also appeared on behalf of the plaintiff.

The form pro hac vice application in this district differs in several respects from the form that Silverman had used in the Central District of California. In particular, the form includes the following questions and admonition:

Has the applicant ever been: censured, suspended, disbarred, or witherwise [sic] disciplined by any court? or is the applicant currently the subject of an investigation of the applicant's professional conduct? transferred to inactive status, voluntarily withdrawn, or resigned from the bar of [any] court? denied admission to the bar of any court?

held in contempt of court?

NOTE: If the answer to any of the above questions is yes, please attach a brief description of the incident(s) and the applicant's current status before any court, or any agency thereof, where disciplinary sanctions were imposed, or where an investigation or investigations of the applicant's conduct may have been instituted.

See, e.g., Docket No. 38 at 2 (emphasis in original).*fn1

On Silverman's application, the answer "no" was checked on each of the questions quoted above, and the application included no explanatory material. Silverman did not physically sign the form. Rather, his "electronic signature" was placed on the form as "s/ Melvin K. Silverman." See Melvin K. Silverman's Resp. to Rule to Show Cause ("Silverman Resp."), Ex. A at 2. The form stated that the applicant "declare[s] under penalty of perjury that the foregoing is true and correct," id., a reference to, among other things, the "no" answers just referenced.

The e-filing receipt for Silverman's pro hac vice motion does not identify who filed it. It does, however, state that Silverman (among others) was sent written notice of the filing of the motion. See dkt. no. 41, e-filing receipt. On September 30, 2010, the local attorney who had appeared on behalf of the plaintiff noticed both pro hac vice motions for presentment in open court on October 14, 2010. The e-filing receipt for the notice of motion reflects that notice of its filing was sent to Silverman. See dkt. no. 44, e-filing receipt. On October 13, 2010, after reviewing Silverman and Daghighian's pro hac vice motions, the Court granted both of them and vacated the October 14 court date. The e-filing receipt for the Court's order reflects that it was sent by mail to Silverman, among others. See dkt. no. 45, e-filing receipt.

In early November 2010, the Court received by mail, from an unknown and anonymous source, a copy of the decision in In re Silverman, 113 N.J. 193, 549 A.2d 1225 (1988), which described a six-year suspension of Silverman's license to practice. The same sender also provided a partial copy of a decision by a Florida appellate court stating that Silverman had knowingly represented a client in Florida despite not being admitted to practice there. See Vista Designs, Inc. v. Silverman, 774 So. 2d 884, 888 (Fla. App. 2001) (stating that "Silverman knowingly engaged in the representation of Vista Designs in Florida even though he was not admitted to practice before this State.").

Though the provenance of this material was unknown to the Court, the Court felt duty-bound to follow up. The Court checked Silverman's already-granted pro hac vice application and noted that it made no reference to the New Jersey suspension. It was clear from the New Jersey decision that Silverman had previously been suspended from the practice of law, and it was equally clear that this contradicted the sworn statement on his pro hac vice application. For this reason, the Court determined to vacate its order granting the application and to consider sanctioning Silverman. The Court entered the following order:

The Clerk is directed to remove the appearance of Melvin Silverman after sending him a copy of this order. The Court's order of 10/13/10 is vacated to the extent it granted Mr. Silverman's motion for leave to appear pro hac vice. In the motion that the Court reviewed [docket no. 41], it appears that Mr. Silverman erroneously checked that he had never been suspended, disbarred, or otherwise disciplined by any court. Someone - it is not clear who - has sent to the Court the decision in In re Silverman, 113 N.J. 193, 549 A.2d 1225 (1988), describing a six-year suspension of Mr. Silverman.

(The same sender also provided a partial copy of a decision of a Florida appellate court stating that Mr. Silverman also knowingly represented a client in Florida despite not being admitted to practice there.) Mr. Silverman is ordered to appear on 12/6/10 at 9:30 a.m. to show cause why he should not be sanctioned on the ground that he appears to have made a false statement under penalty of perjury in the motion he filed. Order of Nov. 15, 2010.

Silverman appeared along with counsel. Via counsel, Silverman also filed a written response to the order to show cause, dated January 7, 2011. Counsel's response stated that Daghighian had prepared the pro hac vice application "without prior approval by Mr. Silverman and without relating to Mr. Silverman the specific question that generated the false answer." Silverman Resp. at 1. Silverman's counsel stated in the response that Silverman "apologizes to the Court and he well understands the weakness of [his] explanation -- he had the obligation to review the pro hac vice application regardless of who prepared it or when it was file[d]." Id. at 2.

Silverman's counsel attached to his response an affidavit by Silverman dated November 30, 2010 that he had filed in response to a show cause order entered by a federal district judge in the Northern District of Texas. In that affidavit, Silverman stated that with regard to the New Jersey Matter of Silverman case, he "voluntarily withdrew from the practice of law" during the investigation and disposition of the ethics allegations at issue there and that accordingly he was not "involuntarily" suspended from practice, which apparently was one of the issues in the Texas case.*fn2 Silverman Resp., Ex. H ¶¶ 4-5. This Court notes that the New Jersey Supreme Court's decision in Matter of Silverman says that Silverman "consented to a voluntary suspension of his plenary license to practice." Matter of Silverman, 549 A.2d at 1234. The New Jersey court concluded that Silverman had in fact violated several rules of professional conduct but determined to impose "retroactive discipline" consisting of the six-year suspension Silverman had already served. Id. at 1247.

Silverman's affidavit also addressed the Florida matter referenced earlier. Silverman stated that he provided the Florida disciplinary authorities with a "cease and desist affidavit" and that as a result those authorities closed their disciplinary file. Silverman Resp., Ex. H ΒΆ 8. He stated that the ...


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