Tuesday, January 19, 2010

Adverse Inference

The New York Appellate Division for the First Judicial Department has suspended an attorney under investigation for misappropriation of the proceeds of a wrongful death action in light of the following:

By letters dated August 3, 2009 and September 25, 2009, counsel for respondent informed the Committee that because respondent was under investigation by the New York County District Attorney's Office, counsel had advised respondent not to respond to the Kraft Complaint and to invoke his Fifth Amendment privilege.

Based on the bank records furnished to this Court, the September 25, 2009 letter from respondent's counsel wherein respondent invoked his Fifth Amendment privilege, and counsel's oral representation to the Committee staff that he would not oppose an interim suspension, we conclude that respondent is guilty of professional misconduct warranting immediate suspension from the practice of law pursuant to 22 NYCRR 603.4(e)(1)(iii).

In the context of disciplinary proceedings, this Court has previously drawn an adverse inference against attorneys such as respondent who have invoked their Fifth Amendment privilege against self-incrimination. Thus, no facts are presented to controvert the Committee's submissions.

Accordingly, the Committee's motion should be granted and respondent suspended from the practice of law, effective immediately, until such time as disciplinary proceedings have been concluded, and until further order of this Court. (citations omitted)

(Mike Frisch)

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