August 7, 2009
Same Length Suspension As Reciprocal Discipline
The New York Appellate Division for the Second Judicial Department has imposed a two-year suspension as reciprocal discipline as a result of that same suspension in Massachusetts. The court described the findings of misconduct of the Massachusetts court:
In January 2003 the respondent telephoned an insurance adjuster's supervisor and, without identifying himself personally, said that he was an officer of the court who overheard a judge say that he was appalled that the insurer had made only one offer to settle a particular claim that was the subject of an unfair settlement practice case on trial before the judge. The respondent related the judge as saying that the insurer was going to get "hammered." The respondent told the supervisor that the insurer should consider itself warned and advised settlement of the case at bar. The respondent had a similar case involving the same insurer. He telephoned the adjuster in his case the next day to say that the insurer would lose the case.
The insurer moved for a mistrial in the case and traced the telephone call to the respondent's law office. The respondent left a message on the judge's answering machine that he would attend the continued hearing on the motion for a mistrial because he wanted to testify that he had been misunderstood. The judge decided that he would allow the motion for a mistrial, cancel the hearing, and recuse himself from the case. The respondent left another message for the judge to the effect that the allegations against him were incredible and he wanted to straighten out the record.
The hearing committee found that the respondent intended to dissuade the judge from declaring a mistrial and fabricated information about the judge's impressions of the trial in an attempt to influence the insurer's decision in his pending case. The respondent was found to have engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation and conduct prejudicial to the administration of justice inasmuch as the matter ultimately resulted in a mistrial. The respondent's ex parte telephone calls to the judge and attempts to influence him were found to constitute violations of the Massachusetts Rules of Professional Conduct 3.5(a) and (b).
The second charge against the respondent emanated from his refusal in June 2004 to turn over, within a reasonable time after being discharged, the clients' files to successor counsel in a contingent fee case and his intemperate and vulgar conduct toward successor counsel.
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