August 27, 2009
No Mitigation Without Causation
The New York Appellate Division for the Second Judicial Department imposed a three-year suspension of an attorney based on findings of dishonest conduct. The lawyer made false statements of fact to a tribunal and failed to advise the tribunal of prior rulings in litigation. The court did not accord significant weight to claims of mitigation:
By way of mitigation, the respondent submits that he has accepted full responsibility for his actions, which were not the product of self-dealing, that he has persuasively expressed his regret, shame, and remorse, that the actions under review involved only one case out of a long and distinguished career lasting over 23 years, and that his misconduct dates back to 2004, which was a particularly low point in his life due to a severe medical condition. The respondent has since been diagnosed with chronic inflammatory demyelinating polyneuropathy, a chronic condition of no known origin or cure which causes the autoimmune system to attack the peripheral nervous system and has destroyed a large part of it. According to the respondent, his symptoms included agonizing backaches and weaknesses in his arms and legs. He experienced these symptoms when he was representing[the client]. In addition, he experienced chronic exhaustion.
The Grievance Committee notes that the respondent has offered no evidence that his illness caused him to issue false statements of fact to the courts, to fail to advise the Family Court of prior decisions of other courts, to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation, or to engage in frivolous conduct by filing a deficient record on appeal.
The Special Referee offered the observation that the respondent's misconduct was apparently unrelated to self-dealing but was more likely attributable to an overly zealous series of actions designed to achieve his client's objective.
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