December 11, 2009
Dishonesty Not Caused By Depression
The New York Appellate Division for the First Judicial Department has imposed a five-year suspension, with no credit for time served, for a pattern of misconduct involving neglect and dishonesty to conceal the neglect. The attorney had been employed as New York area counsel to a national insurance company. The court here summarizes the evidence as to the cause of the misconduct:
A hearing was held before a Referee on November 21, 2008. Respondent testified, as did M. Geraldine Hoban, Ph.D., his treating psychologist. Dr. Hoban testified that she had been treating respondent for clinical depression since September, 2005. Because of respondent's self-admitted alcohol and drug abuse, she initially referred respondent to a substance abuse program, which he completed in January 2006. While Dr. Hoban was able to state with a reasonable degree of psychological certainty that respondent's depression was a major contributing factor to his neglect of legal matters, she could not conclude that respondent's depression and "self-destructive" behavior were causally linked to his repeated acts of intentional deceit. She also stated that at the time she diagnosed respondent's depression, she was unaware of these deliberate actions. Respondent himself acknowledged that while prescribed medication was effectively alleviating his depression by 2006, he continued to engage in fraudulent misconduct during that period.
As to sanction:
Given respondent's pattern of misconduct, his repetitive fabrication of documents to deceive his clients and Fidelity, and the large financial loss borne by Fidelity as a result of respondent's misconduct, a substantial suspension is warranted...
Further, we direct that the suspension be prospective. Respondent's indefinite suspension was due to misconduct (continued failure to register), which was entirely independent of the serious misconduct for which he was charged herein, and in violation of Judiciary Law § 468-a. This is not a case where a respondent was suspended on an interim basis (either pursuant to 22 NYCRR 603.14(e)(1) or a "serious crime" matter) and where this Court would follow its usual practice in such a case of ultimately suspending or disbarring the attorney nunc pro tunc based upon the same misconduct which resulted in the interim suspension. Moreover, respondent obviously knew that registration was required, having done so consistently from the time of his initial admission until 1998. Thus, his subsequent failure to register from 1999 forward must be considered as more than a mere inadvertence and respondent should not profit from it by having his suspension made retroactive to the date of his suspension.
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