Thursday, June 12, 2008

Dead Man's Statute Not Applied In Bar Discipline Matters

The New York Court of Appeals today held that the Dead Man's Statute does not preclude the admission of evidence in a bar disciplinary proceeding, reversing the decision of the First Judicial Department and remanding for further proceedings. The First Department had rejected a referee's recommendation of a public censure and imposed a two-year suspension.

The case involves charges of mishandling escrowed funds from the sale of real estate. The lawyer, who has no prior discipline, had represented a husband and wife. He testified that he never sent them bills, but sought payment at the conclusion of discrete matters. The husband died and the wife became ill. The lawyer arranged the sale of an apartment building that was the wife's principal asset. He testified in the bar proceeding that he had her oral authority to treat $200,000 held in escrow as his fee. Later, her daughters questioned his handling of the escrowed funds. The court ruled that the statute applies to probate matters  and did not operate to exclude the evidence of the wife's statements (the referee had found the accused attorney credible in this respect) in the bar proceeding. (Mike Frisch)

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