Can His Hispanophobic Diatribe Get New York Attorney Aaron Schlossberg Disciplined or Disbarred? Probablemente No

by Diane Klein

New York attorney and Trump 2016 donor Aaron Schlossberg is currently enjoying (which is to say,  suffering) his 15 minutes of fame for his now-viral xeno- and Hispanophobic rant in a New York City Fresh Kitchen in East Midtown.  What appears to have set him off was a Fresh Kitchen employee having the temerity to speak to customers and other employees in Spanish. 

His tirade itself contained a "greatest hits" of alt-right clichés, each premised on errors of fact and law that would embarrass an attorney actually concerned about getting things right.  But it won't get him disbarred (or even disciplined).

Schlossberg began by taking it upon himself to Anglosplain to the young Asian manager that the restaurant's employees "are speaking Spanish, to customers, when they should be speaking English."  He continued, "if you intend to be running a place in Midtown Manhattan, your staff should be speaking English, not Spanish." 

No law in New York City requires this, and in fact, under federal and New York law, employers bear the burden of proof of non-discrimination under Title VII should they impose an English-only rule.  In 2006, the Melrose Hotel in New York City paid an $800,000 judgment in the aftermath of imposing such a rule. So I wouldn't recommend that Fresh Kitchen take any employment law advice from The Law Office of Aaron M. Schlossberg, Esq., P.L.L.C, despite its claim to "offer[] skilled business law representation to business owners and entrepreneurs with legal needs in the New York City metropolitan area."

Next, Schlossberg suggested, simultaneously, that Fresh Kitchen was employing undocumented workers ("and my guess is, they're not documented"), and that those workers were relying on public assistance ("I paid for their welfare").  Employing undocumented persons (that is, persons without the right to work in the United States) violates 8 U.S.C. Section 1324a, and it is a federal offense.  But presumably, the only basis for this "guess" is the employees' use of Spanish, and if Schlossberg were to begin an enforcement action on this basis, it might violate New York Rule of Professional Conduct 3.1, which states that "a lawyer shall not bring or defend a proceeding ... unless there is a basis in law and fact for doing so that is not frivolous."  But like Schlossberg's threat that "my next call is to ICE to have each one of them kicked out my country," he does not appear to have any serious intent to engage in any such action.

Moreover, although this is a constant talking point on the alt-right, undocumented persons are not eligible for public assistance (as even conservative Republican New York State Senator James Seward must concede, albeit while complaining that taxpayers pay for the federal government's immigration courts which determine status).  Similarly, Schlossberg's know-nothing comments that "they have the balls to come here and live off of my money" and "I pay for their ability to be here," most charitably interpreted, amount to promulgating the myth that immigrants are a net drain on the economy - a claim debunked by, among other radical left organizations, the U.S. Chamber of Commerce.

And not to leave any offensive stone unturned, Schlossberg gratuitously body-shamed Emily Serrano, the woman videotaping him, with this parting shot: "Maybe you shouldn't eat that sandwich today, take a break from the food."

Thanks to social media's crowdsourcing cababilities, we learned in short order that this week's rant turned out not even to be the first videotaped example of Schlossberg's execrable conduct, which has included other anti-Hispanic incidents (from someone who advertises himself, unironically, as "fluent in Spanish," and "conversational [sic] in French and has [sic] basic knowledge of Mandarin Chinese and Hebrew"), as well as shouting matches with Jewish supporters of Palestinian rights (Schlossberg himself is also Jewish).

In the aftermath of  the Fresh Kitchen video, Corporate Suites, Schlossberg's landlord at 275 Madison Avenue, has "terminated his services agreement with us," so he'll have to find someone else from whom to rent a furnished office.  (I hear Squire Patton Boggs has some empty space....)  And he is being "pummeled" on Yelp.  

Two New York politicians - Bronx Borough President Ruben Diaz Jr. and Congressman Adriano Espaillat, have leapt into the fray, and apparently filed a formal complaint of some kind, in a letter that stated,
What we witnessed in the vile video from Mr. Schlossberg, which has since gone viral, is a humiliating and insulting attack on the more than 50 years of progress that this nation has made since the civil rights movement.  We watched Aaron's video and we were disgusted.
Vile and disgusting, it unquestionably is.  But sanctionable?  Probably not.  The rule that most specifically addresses racial or other bias among lawyers is New York Rule of Professional Conduct 8.4(g).  It states,
A lawyer...shall not...unlawfully discriminate in the practice of law, including in hiring, promoting or otherwise determining conditions of employment on the basis of...race [or]...national origin....A certified copy of a determination by [an appropriate] tribunal, which has become final and enforceable and as to which the right to judicial or appellate review has been exhausted, finding that the lawyer has engaged in an unlawful discriminatory practice shall constitute prima facie evidence of professional misconduct in a disciplinary proceeding...
Comment [3] to the Model Rules states that
Discrimination and harassment by lawyers in violation of paragraph (g) undermine confidence in the legal profession and the legal system.  Such discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others.... The substantive law of antidiscrimination and anti-harassment statutes and case law may guide application of paragraph (g).
(Comments to the Model Rules are also adopted by jurisdictions like New York which have enacted the underlying Model Rule.)

While this might initially appear promising - Schlossberg's videotaped rant surely qualifies as "harmful verbal ... conduct that manifests bias or prejudice towards others" - the problem is the limiting language of Rule 8.4(g) itself. 

By its own terms, the Rule clearly governs discrimination in the "practice of law."  Comment [4] to the Model Rules clarifies that this covers "representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law..."  It also covers "business or social activities in connection with the practice of law."  This rule also encompasses the obligations of the lawyer as an employer in the State of New York.  It does not reach other activities of the lawyer as a citizen or individual.  As the U.S. Supreme Court remarked in quite a different context, Title VII, the federal anti-discrimination employment law, is not "a general civility code" - and neither are the Rules of Professional Conduct, where extra-professional conduct is concerned.

Similarly, and despite their legal content, Schlossberg's statements about "calling ICE" are also probably not made in his role as a lawyer.  While making such a threat to intimidate a witness or adversary in litigation would clearly be sanctionable under Rule 3.1, as "conduct [that]...serves merely to harass or maliciously injure another," outside that context, it is just cruel, ignorant, and contemptible.

Rule 8.4(d) does prohibit "conduct that is prejudicial to the administration of justice," and Rule 8.4(h), the final "catch-all" provision in the Rules, prohibits the lawyer from "engag[ing] in any other conduct that adversely reflects on the lawyer's fitness as a lawyer."  But those last three words really matter.  While it might be appealing to believe that an ignorant, repellent, xenophobic racist and White supremacist is unfit for the practice of law - and I would surely not wish to be represented by him - it is not obviously so.  As Comment [2] to the Model Rules explains,
Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud .... However, some kinds of offenses carry no such implication....[O]ffenses concerning some matters of personal morality, such as adultery and comparable offenses, ... have no specific connection to fitness for the practice of law.  Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate a lack of those characteristics relevant to law practice.  Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. (emphasis added).
Aaron Schlossberg is a shande and a lawyer who may well be put out of business by negative Yelp reviews and the opprobrium his public displays of ignorance and Hispanophobia fully warrant.  But probably not by the Attorney Grievance Committee.