Friday, December 4, 2009

Admission Sufficient To Accept Resignation

The New York Appellate Division for the First Judicial Department has accepted the resignation and struck from its rolls an attorney in the wake of findings of dishonesty in eviction litigation. The court notes:

...this Court granted the Departmental Disciplinary Committee's petition, based upon collateral estoppel, and found that respondent was guilty of professional misconduct in that he engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Disciplinary Rule 1-102(A)(4); that said conduct was prejudicial to the administration of justice in violation of DR 1-102(A)(5); and that such conduct adversely reflected on respondent's fitness to practice law in violation of DR 1-102(A)(7).

These findings were based upon a determination in Civil Court, New York County (Gerald Lebovits, J.) that respondent had asserted, under oath, in a 2005 nonpayment proceeding, on more than one occasion, material factual statements that were false. That court also imposed a $10,000 sanction against respondent for engaging in frivolous conduct during the course of the nonpayment proceeding (see 1050 Tenants Corp. v Steven Lapidus, 13 Misc 3d 1220[A], 2006 Slip Op 51925U, aff'd 17 Misc 3d 133[A], 2007 NY Slip Op 52049U). This Court's June 5, 2009 order referred respondent's matter to the Committee for a hearing solely on the issue of sanction.

The court found the admissions in the resignation sufficient:

Respondent has chosen to submit his resignation pursuant to 22 NYCRR 603.11. In his affidavit in support of his resignation, he states that he is resigning from the Bar; that his resignation is rendered freely, voluntarily, and without coercion or duress; that he is fully aware of the implications of submitting his resignation and of the disciplinary proceedings against him; and specifically acknowledges that he has already been found guilty of professional misconduct as per this Court's June 5, 2009 order. He acknowledges that, in light of the invocation of the collateral estoppel doctrine and the order of this Court, his misconduct is deemed established and the only issue at the impending hearing would be the sanction to be imposed upon him. In explaining his decision to resign, respondent states "I have retired from the practice of law and believe that it would make little sense to expend court resources, Committee resources and my own financial resources in defending this matter."

Counsel for the Committee states that he is satisfied that the affidavit conforms with the requirements set forth in section 603.11.

A comparison of the requirements in 22 NYCRR 603.11(a)(2) and (3) with the language in respondent's affidavit finds that the affidavit is not in technical compliance, since respondent did not specifically identify the nature of his misconduct, and did not actually state that he could not successfully defend himself on the merits against the charges. Nevertheless, we conclude that sufficient is admitted in the affidavit to find that respondent admits that his guilt was established by this Court's June 5, 2009 order. This order, in turn, was based upon the Civil Court findings that he had engaged in making multiple perjurious statements in a judicial proceeding. His admission that "it would make little sense" to expend, inter alia, his own financial resources in defending this matter is deemed an admission that he cannot successfully defend himself on the merits.

(Mike Frisch) 

http://lawprofessors.typepad.com/legal_profession/2009/12/the-new-york-appellate-division-for-the-first-judicial-department-has-accepted-the-resignation-and-struck-from-its-rolls-an-a.html

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