Thursday, September 4, 2008

A Sanction Less than Disbarment

The New York Appellate Division for the Second Judicial Department suspended an attorney for three years for misconduct in several matters. The attorney had had a number of prior brushes with the disciplinary system over the course of a 55 year career with numerous cautions and admonitions. Among the charges in the present matter was failure to supervise lawyer employees:

Charge five alleges that the respondent delegated certain responsibilities to other lawyers employed by his law firm during his representation of Tucker, but did not regularly meet with the lawyers assigned to Tucker's case and was not aware when the hospital records were requested and what steps were taken to identify the operating surgeon and have him served. It is further alleged that, in the exercise of reasonable management or supervisory authority, the respondent knew or should have known of the need to timely obtain the hospital record, identify the operating surgeon, and have him served prior to expiration of the statute of limitations. After settlement of the action, the respondent failed to have the lawyers in his office communicate with Tucker and file the necessary papers with the Surrogate's Court to timely complete the settlement. By reason of the foregoing, the respondent is alleged to have violated Code of Professional Responsibility DR 1-104(c) (22 NYCRR 1200.5[c]), DR 1-104(d)(2) (22 NYCRR 1200.5), and DR 1-102(a)(7) (22 NYCRR 1200.3[a][7]).

The court sustained this charge as well as neglect, escrow violations and outher misconduct. There was some compelling mitigation evidence:

The respondent submits, as mitigation, the following factors or considerations: his 50 years of practice as an attorney servicing innumerable clients, many of whom would not otherwise have obtained legal representation; the terminal illness and eventual demise of his wife, who had acted as an office manager for his practice; that his daughter, Marna Berkman, whose four young children, particularly a child afflicted with a serious brain injury, was required to spend significant periods of time out of the office; the lack of venality on the respondent's part; the respondent's sincere remorse and contrition; the decision in January 2007 to make Marna Berkman a managing partner in his practice, now The Berkman Law Office, LLC; the recent administrative reforms implemented in his practice (a complete overhaul including new staff, new computer equipment and software, annual reviews for all cases) to prevent cases from getting "lost" in court or in the office; and the career-ending effect any sanction, greater than a public censure, will most likely have on the respondent's life in view of his advanced age, not to mention the devastating effect on the firm given the respondent's role in the firm.

The court considered this mitigation evidence as well as the record of prior discipline in determining to impose a lesser sanction than disbarment. (Mike Frisch)

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