Tuesday, October 14, 2008

Getting Mad, Not Getting Even

When a lawyer who is the subject of a bar complaint sues the complainant in retaliation, such a suit may form the basis for a separate disciplinary charges. A lawyer admitted in 1962 was suspended for a year and until further court order by the New York Appellate Division for the First Judicial Department. The lawyer denied that he had ever represented the complainant, a contention rejected by the referee:

The Referee found Mr. Crowley [the complainant] "completely credible" and, in rejecting respondent's contention that there was no attorney-client relationship between the two of them because there was no written document or payment of a fee, found:

[t]he documents indicate the retention of Alliance by Crowley. Respondent admitted sharing offices with Alliance, (admitting that he was a sub-tenant) having a desk and telephone, with his name on the door and paying no rent, except rendering legal service in the nature of opinions on collectability of debts. He admitted speaking to Crowley on the phone but never met him. He admitted taking referrals from Alliance and representing them when his own interest was involved e.g. defending an ejectment action against the landlord [], and forming a corporation for them. In addition Respondent never gave Crowley an address or phone number other than Alliance's and his pleadings in the Supreme Court action against Crowley contained that same address.

The lawyer denied any misconduct and responded to the complaint with a multi-facted attack:

Respondent, pro se, opposes the petition in its entirety, arguing, among other things: his demand for discovery and an adjournment was wrongfully denied; prosecutorial misconduct by the Committee; the findings of misconduct were not supported by the credible evidence; reversible errors were committed by the Referee; the complaint was five years old when acted upon and the Committee had prior notice of his intention to sue the complainant but did nothing; and a vigorous defense does not constitute lack of remorse or an admission of guilt as found by the Referee.

In reply, the Committee argues that respondent has restated as "reversible error" virtually every objection and argument made by him and rejected by the Referee and the Hearing Panel, including the claims of wrongful denial of discovery, prosecutorial misconduct, coaching of the witness, and denial of his ability to question Mr. Crowley about his "alternative lifestyle." It points out that, although respondent was given ample opportunity to present his defense, he declined to call any witnesses or to testify on his own behalf, instead offering only one exhibit, a blank Committee complaint form. The Committee also contends that respondent has failed to offer any support for his allegation that the witness's testimony was "doctored" and cites no case law to support his claim that his defenses to the charges are valid or that reversible errors were made. Respondent did not present any evidence in mitigation and, as he did before the Committee, has not offered any legal argument or precedent to support a less severe sanction.

The evidence shows that respondent threatened to sue Mr. Crowley when he advised respondent that he would complain to the Committee about respondent's failure to bring a collection suit on his behalf as promised. Within weeks of receipt of Crowley's disciplinary complaint, respondent followed through with his threat and sued Crowley for $1.75 million specifying that the damages were due to the fact that Mr. Crowley had complained to the Committee about him. Respondent then served Crowley with interrogatories and a motion for summary judgment, which, without notifying Crowley, he never placed on the court calendar.

The attorney had been subject to four prior admonitions, had been abusive in his cross-examination of the complainant and "lacked candor" in the disciplinary process. The court found that the suspension "gives notice to the bar that such behavior will not be tolerated." (Mike Frisch)

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