Tuesday, June 1, 2010

Speak Into The Microphone

The New York Appellate Division for the First Judicial Department today imposed a six-month suspension of an attorney after receiving evidence of secretly tape-recorded conversations made by the client:

An investigation commenced into this matter upon a complaint from a former client, "L.E.", filed with the Departmental Disciplinary Committee on November 25, 2005. Some of the alleged misconduct was secretly recorded by the client during telephone conversations and a meeting in respondent's office. The client provided the Committee with recordings of two telephone conversations and a meeting that took place in respondent's office in October 2005 which were admitted into evidence at the disciplinary hearing.

The Committee charged respondent with acts of professional misconduct including making unwelcome sexual advances to L.E. in violation of DR 1-102(A)(7), asking L.E. for oral sex incident to his representation as trial counsel in violation of DR 5-111(B), boasting to L.E. that he is able to influence improperly Appellate Division judges in violation of DR 9-101(C), calling one of the First Department judges a "prick" in violation of DR 1-102 (A)(7) and making suggestive comments to his secretary and inappropriately touching her in violation of DR 1-102(A)(7).

Respondent submitted an answer to the charges in which he made some admissions but otherwise denied the charges. At the lengthy hearing before the Referee, L.E.'s direct examination was completed but her cross-examination was interrupted at her request and an extended adjournment granted, based upon proffered health reasons. When L.E. failed to return for the balance of her cross-examination, at the request of the Committee this Court issued a subpoena which was served upon L.E. but she did not comply and did not appear. Thereafter, the Referee granted respondent's motion to strike L.E.'s testimony from the record but ruled that the recording of the October 2005 meeting, the two telephone conversation recordings, and the transcripts of those recordings would not be stricken because they had been identified by respondent.

Based upon the preponderance of the evidence and admissions made by respondent, the Referee sustained the charges relating to unwelcome sexual advances and sexual misconduct involving L.E., as well as the charges involving inappropriate comments about this Court, and dismissed the other charges as unsustained. The Referee recommended a two-year suspension for the violations concerning respondent's inappropriate sexual behavior and public censure for the comments made about the judiciary. The Hearing Panel affirmed the Referee's decision relating to respondent's inappropriate sexual conduct but reversed the Referee's findings of liability regarding the offensive comments about the judiciary, concluding that they did not constitute violations of the Disciplinary Rules as they were made in private. The Panel recommended a five-year suspension.

The court concluded that lengthy suspensions are appropriate where the sexual misconduct involves deeds as well as words. As to sanction:

[The attorney] acknowledges that his conduct was inappropriate and regrettable, but explains that at the time, he believed that the touching was consensual and not uninvited given his previous flirtatious and personal discussions with L.E., and that they had a special relationship separate from the attorney-client relationship. Respondent contends that L.E. recorded additional conversations and "cherry-picked" only a small fraction of the many conversations that they shared in order to falsely portray respondent as someone who sexually assaulted and intimidated her. Respondent also apologizes for his disrespectful comments about this Court.

In mitigation, the approximately 76-year-old respondent lists his professional and public activities, the awards he has received, his character witnesses attesting to his honesty and his unblemished 50-year legal career. He urges that his conduct was isolated and aberrational and not part of a pattern, that he does not pose a threat to the public and that there is no likelihood he will act improperly in the future. He maintains that a public censure is the fair and appropriate sanction.

Upon a review of the record, we confirm the findings of fact of both the Referee and the Hearing Panel which relate to respondent's sexual misconduct and the charges pertaining to comments concerning this Court; disaffirm the Referee's conclusions of law and confirm the Panel's conclusions of law with respect to those latter charges, and suspend respondent from the practice of law for six months.

The court concluded that is not an ethical violation to call an Appellate Division judge a bad name or boast about an ability to influence a judge outside the presence of the court. (Mike Frisch)


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I am heartened to know that if I ever wish to call an Appellate Division judge a prick, I am free to do so.

However, six months seems an awfully short suspension, though, for sexual misconduct involving a client. Footnote 1 suggests that there is more to this story than meets the eye.


Posted by: FixedWing | Jun 1, 2010 12:02:12 PM

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