Thursday, June 4, 2009

Costs Award Overturned For Threatening Letter To Adverse Witness

A majority of the New York Appellate Division for the First Judicial Department overturned an award of costs against a client and lawyer that was based on the lawyer's letter to an adverse witness in an anticipated arbitration hearing concerning the removal of a tenured professor.

A partial dissent lays out the key facts:

Petitioner, already represented by an attorney on his claim of wrongful termination of employment, retained a criminal lawyer whose sole contribution was to send a letter to respondent's witness stating that her testimony against petitioner could constitute perjury, followed by a letter to the respective director of security at each of respondent's New York campuses asserting that "an investigation by your office will lead you to the conclusion that [the witness] committed perjury in violation of New York Penal Law Sections 210.05; 210.10." Since I agree that no valid basis has been advanced for the equitable relief sought by petitioner and because I regard the unauthorized communication as an unvarnished attempt to intimidate a witness, I conclude that the imposition of costs and the award of attorneys' fees against petitioner and additional counsel was a provident exercise of Supreme Court's discretion.

After investigating complaints from 37 students regarding petitioner's inappropriate conduct during class, respondent sent a letter to petitioner notifying him that, pursuant to the collective bargaining agreement (CBA) governing professors employed by New York Institute of Technology, "you are hereby dismissed, effective as of May 21, 2007, for engaging in serious professional misconduct." The letter asserted that petitioner denigrated students' intelligence and ethnicity, made sexually explicit remarks, demeaned other faculty members at an affiliated college and made sexual advances toward female students. On June 4, petitioner invoked the grievance procedure under the CBA and, the following day, brought this proceeding (a) to compel arbitration and (b) for equitable relief...  

As to respondent's motion for costs and attorneys' fees against petitioner and additional counsel (collectively, appellants)...This Court "will defer to a trial court regarding sanctions determinations unless there is a clear abuse of discretion" (citation omitted).No such abuse is discernable.

According to his affidavit, counsel was consulted by petitioner for the limited purpose of sending a letter to a witness against petitioner, followed by a second letter to respondent's campus security directors. The witness submitted an affidavit attesting to petitioner's unwelcome verbal and physical advances, conduct that resulted in the witness's filing a formal complaint with respondent's director of human resources. Specifically, she avers that petitioner spent a good portion of class time asking her personal questions, that he asked her to break up with her boyfriend, invited her to dinner in his apartment, and hugged her and kissed her. Counsel's letter to the witness is dated within two weeks of her affidavit, and his letter to respondent's security staff is dated approximately two weeks thereafter. Another student also submitted an affidavit in support of respondent's opposition to petitioner's proceeding for injunctive relief.

From the perspective of a sophisticated reader, well versed in the law, counsel's letter to the witness is something less than an unqualified accusation of perjury. It states, equivocally, "I determined that it was my client's position that statements made in your affidavit were untrue." The language employed is conditional: "If indeed your sworn allegations were knowing falsehoods, without a retraction, you could be guilty of perjury." But the threat of prosecution and the proffered solution are unlikely to have been lost on an unsophisticated, young layperson: "if you change your affidavit to rectify any untrue statements before the proceeding in New York State Supreme Court is over, you may have a defense to the perjury charges." Copies of the pertinent Penal Law provisions were enclosed. Finally, while the letter advises the witness to seek independent advice, it counsels the witness to consider retraction and invites further communication, stating, "Although you should certainly obtain your own legal advice, I wanted to inform you that if you lied in your statement, you might want to retract the statement sooner rather than later, so that this defense might be available to you." The letter concludes, "If you do not have an attorney, feel free to contact me at the above number to discuss this further."

In his affidavit in opposition to respondent's motion for costs, counsel states that he is unfamiliar with civil litigation. He professes to have been misled by petitioner's claim that the witness was in an abusive relationship and was pressured into filing a false statement. He explains that he was persuaded "to send the letter because I believed that if, in fact, she had committed perjury, notably because of pressure from her boyfriend, that she might welcome the knowledge about the defense to perjury and would obtain counsel in an effort to help herself." However, this sentiment is in sharp contrast to the tone of counsel's letter to respondent's campus security directors, which states that the witness's affidavit "makes outlandish statements against Mr. Kalyanaram. We believe that a modest investigation by you of these statements will uncover the statement's [sic] falsity and that after this investigation, you will determine that the matter should be referred to law enforcement." It should be noted that during the course of the proceeding, the parties and their attorneys appeared twice before the court and submitted extensive affidavits and information. At no time did counsel on behalf of petitioner seek discovery or request an evidentiary hearing which would have shed light on the veracity of the complaints.

It bears emphasis that the standard of review in this matter is not whether this Court, examining the circumstances de novo, might conclude that the propriety of this communication with an adverse witness should be consigned to the Departmental Disciplinary Committee, to which it has been referred, for investigation and determination. Nor is it a question of whether Supreme Court committed legal error in imposing costs and fees against petitioner and counsel. The only issue before us is whether the imposition of costs and fees constitutes "a clear abuse of discretion" by the court (id.).

Appellants have advanced no basis for departing from Supreme Court's conclusions that petitioner "decided to threaten [the witness] with the specter of having to endure a criminal perjury investigation and indictment which he would initiate," and that counsel "should have recognized that such extra-judicial efforts to put pressure on [the witness] to retract her charges against petitioner in this proceeding and in the arbitration proceeding were highly improper." As the court noted, costs may be awarded for frivolous conduct upon motion after affording a reasonable opportunity to be heard (22 NYCRR 130-1.1[d]) and, in this case, appellants received ample opportunity to oppose respondent's motion, submitting extensive opposing papers.

While, as noted, there is little merit to petitioner's application for injunctive relief, which seems to have been interposed merely to prolong the proceedings, whether it is so devoid of legal merit as to be considered frivolous is subject to interpretation (22 NYCRR 130-1.1[c][1], [2]). There can be no question, however, that the communications with the witness and with respondent's campus security directors, whether or not amounting to an outright accusation of perjury, were intended "to harass or maliciously injure" respondent's witness (22 NYCRR 130-1.1[c][2]). The communications transgressed the former Code of Professional Responsibility DR 7-105(A) (22 NYCRR 1200.36[a]), which provided, "A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter." They also offended DR 7-104(A) (22 NYCRR 1200.35[a]), which provided:

"During the course of the representation of a client a lawyer shall not:

* * *

"(2) Give advice to a party who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such party are or have a reasonable possibility of being in conflict with the interests of the lawyer's client."

Because petitioner and counsel were both involved in the decision to send the offending letters, the court properly imposed costs against both.

(Mike Frisch)

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