Disciplinary Staff
Lawyer facing divorce gets suspended for sending 'hostile' messages
An attorney who hurled "hostile, obscene and derogatory" missives at his wife and professionals involved in their divorce, has been suspended for two years by the Appellate Division, 1st Department, which rejected a three-year censure requested by court's disciplinary staff.
Anthony Chiofalo, the attorney at the center of Matter of Chiofalo, M-3073, married in 1990. His wife, with whom he had two sons, filed for divorce in 2005. The case apparently has not been resolved, according to the decision.
During the course of the divorce, Chiofalo, against the advice of his own attorney, sent written messages that the court said were "riddled with profanities (primarily of a scatological and sexual nature)," to his wife, her lawyers, his sons' law guardian and the law clerk assigned to his divorce case.
At one point, Chiofalo "threatened to cut off one attorney's pinkie and send it to his wife," the court said. He also questioned, without basis, the integrity of the judge handling the case and accused his wife's attorney of dishonesty and exploitation of the couple's children in order to obtain excessive fees.
The panel noted that Chiofalo had pleaded guilty in the Bronx Criminal Court to a disorderly conduct violation based on his contacting his wife and children in violation of an order of protection. While acting as his own lawyer, he also filed a federal lawsuit in California where he had been living, against 29 defendants, including his wife, her attorneys, a judge and three supervising judges and the American Bar Association, claiming his civil rights had been violated.
The 1st Department disciplinary committee brought two charges against Chiofalo related to the conduct related to his remarks and two related to the allegedly frivolous federal lawsuit.
Chiofalo, 49, conceded two disciplinary charges stemming from his vituperative correspondence, but contested two charges arising from his filing of the lawsuit in California. He claimed that his actions had been the product of "stress over his divorce and financial situation," and that his behavior did not harm any clients. He asked that he receive at most a six-month suspension.
The referee before whom the hearing was conducted upheld the two charges related to the lawsuit. The 1st Department panel upheld the ruling, finding Chiofalo had "effectively conceded" that the suit was frivolous, seeking to draw attention to "issues of parental alienation issue" rather than seeking relief a court could award.
The referee recommended a one-year suspension. One of the disciplinary committee's hearing panels upheld the referee' findings as to the charges but bumped the penalty up to a two-year suspension.
The legal staff of the 1st Department 80-member disciplinary committee, with the approval of its chairman, Roy L. Reardon, a partner at Simpson Thacher & Bartlett, asked the court to increase the suspension to three years.
In rebuffing the staff request for a longer censure, the panel found the request "appears" to be out of line with the court's prior rulings. In that regard, the court said that Chiofalo's conduct was "not as serious" as that reported in its 1994 ruling in Matter of Israel, 205 AD2d 101, where an attorney had been given a three-year suspension in circumstances that were more "serious" than Chiofalo's.
The attorney in the Israelcase had made three motions designed solely to harass his client, lied under oath, frustrated a judgment against him, neglected or mishandled several other client matters and lacked contrition, the panel noted.
But the panel also rejected Chiofalo's plea for leniency, noting that "while divorce proceedings can certainly be distressing, especially when children are involved, they do not excuse long-term spiteful actions." As to his claims that no clients were harmed, the court said the individuals he named as defendants in the federal lawsuit were "victims of his misconduct."
Chiofalo started his legal career after graduating from Fordham University School of Law practicing corporate law in both law firm and in-house settings. More recently he has been hired as a contract lawyer on various projects. Currently, he has advised the court according to the opinion, that his work has been "paralegal in nature."
Chiofalo's lawyer, Michael A. Gentile, said, "The decision is certainly consistent with the court's having reflected carefully upon the case."
Serving on the 1st Department panel were Justices Angela M. Mazzarelli, Karla Moskowitz, Rolando T. Acosta, Helen E. Freedman and Rosalyn H. Richter.
Mady J. Edelstein handled the matter for the Departmental Disciplinary Committee.
(Published by Law.com – September 17, 2010)