Thursday, August 14, 2008

Bad Deed

The New York Appellate Division for the Second Judicial Department imposed a five-year suspension of an attorney, rejecting a referee's conclusion that he had acted with subjective good faith and should not be disciplined in the following actions:

On May 20, 2002, the respondent visited the psychiatric unit of Columbia Presbyterian Hospital where his cousin, Rubin J., was a patient. The respondent knew of Rubin's recent history of psychiatric hospitalizations. Reynaldo Hylton, a notary, accompanied the respondent. The respondent also brought a deed and other legal documents that he had prepared. The respondent had Rubin execute the deed, conveying Rubin's house in Brooklyn to the respondent and his wife, without any consideration. Rubin continued to be liable as a mortgagor in connection with a mortgage loan that financed his purchase of the house.

The respondent recorded the deed the next day and ignored immediate requests by Rubin and his attorneys to reconvey the property on the ground that the conveyance was a nullity by virtue of his hospitalization.

The court noted that the conveyance had been set aside in litigation and concluded:

The respondent's defense is based on his own nonexpert diagnosis, and that of his hand-picked notary, that Rubin was of sound mind and was competent to cede ownership of his property without consideration and without the advice of an independent attorney. The respondent's counsel posits a subjective standard, based on what was purportedly in the respondent's mind at the time he had Jordan execute the deed, notwithstanding the objective facts. That standard was adopted by the Special Referee, and factored prominently in his assessment of the witnesses' credibility.

The findings of the Special Referee, however, are contradicted by some of the respondent's own witnesses, and find no support in the hospital records. Significantly, the respondent's misconduct was not limited to his actions of May 20, 2002. Despite numerous opportunities to return the deed, the respondent's actions in moving into the residence, collecting rents from tenants while Rubin continued to repay the mortgage loan, and refusing to vacate the premises until a City marshal's intervention was sought, demonstrate an ongoing intent to deprive Rubin of his property.

The respondent's position disregards the protection afforded by the New York State Department of Mental Hygiene, the advice of family members, the rules of professional conduct, and rulings by both the Supreme Court and the Appellate Division. Under the circumstances, we find that the Special Referee erred in failing to sustain the charge.

The attorney had been charged with a single count of violating the prohibition against conduct involving dishonesty, fraud, deceit or misrepresentation. The present New York version of the rule, New York DR 1-102(a)(4), contains the language "which adversely reflects on fitness as a lawyer." Model Rule 8.4(c) does not have that qualification, although no sane bar counsel prosecutes such a charge if the dishonest conduct does not raise such a question.  (Mike Frisch)

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