November 2, 2007
Benefit Of The Doubt
A New York attorney was retained to prosecute a personal injury case on behalf of an injured wife and her husband. He in turn arranged for a lawyer who was not affiliated with him to draft the complaint. He falsely assured the husband that the complaint had been filed and served. After nearly a year, the husband contacted the lawyer, who had not followed up. The husband wanted to pick up the file. The lawyer had a paralegal falsely sign the client's name to a complaint and filed the case. The client discovered the forgery when she obtained her file. A disciplinary matter was initiated.
The New York Appellate Division for the Second Judicial Department considered as mitigation the lawyer's full cooperation, unblemished record, that his judgment "was clouded by the stress of his fiancee's illness", his own physical exhaustion, and the "burden of dealing with the unrealistic demands of his injured client's husband." The court imposed public censure.
The last factor is worth contemplating. Was it unrealistic to expect the lawyer to tell the truth and proceed with diligence? Are difficult clients entitled to lesser protection than more worthy ones under the ethics codes for lawyers? In any event, the difference between a short suspension and a public censure is like night (the dark of having to withdraw from every case ) and day (the light of uninterrupted practice).
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