Wednesday, August 18, 2010

Law Firm Monitoring Fails To Prevent Misconduct

An attorney previously suspended for six months for lying to and presenting fabricated documents to a client has been suspended for eighteen months by the New York Appellate Division for the First Judicial Department. The misconduct was similar to that in the earlier case:

The Referee found that in February 2006, respondent's law firm was retained by Parry Murray & Company, Ltd., a U.K.-based firm, to collect $75,000 owed by Scalamandre Silks, Inc. In the nine months following his retention, respondent failed to institute litigation on behalf of this client and made repeated, deliberate misrepresentations concerning the status of the case via email to Eoin Campbell, Parry Murray's financial controller. Beginning in late May 2006, respondent misrepresented to Mr. Campbell that an action had been commenced. Respondent's misrepresentations about the case continued into October 2006.

In determining sanction, the court rejected calls for greater and lesser discipline than the eighteen month suspension:

Although the misconduct at issue in this proceeding involves one legal matter extending over a period of nine months, the circumstances are disturbingly similar to his previous misconduct, and suggest that he had not learned from his prior discipline. We also note that in the 2001 disciplinary proceeding, respondent testified that he and his firm had taken steps to reduce and manage more effectively his caseload, and had increased supervision by senior partners. Yet, approximately five years after his six-month suspension expired, and despite being monitored by his firm (according to a named partner), respondent committed the misconduct at issue.

Respondent has also offered remorse, but he has expressed it in such a fashion as to indicate that he does not appreciate the seriousness of his misconduct. He essentially counterbalances his contrition by repeatedly emphasizing the fact that the client withdrew the complaint against him and that no harm came to the client.

The Committee's request for a suspension of no less than four years appears too harsh, particularly since we cannot conclude that respondent presented false testimony before the Referee. On the other hand, respondent's suggestion of a six-month suspension overlooks that he has already been suspended for six months for almost the same exact misconduct. We thus conclude that a more severe sanction is necessary, and that the Hearing Panel's recommendation of an 18-month suspension is appropriate.

Accordingly, the Hearing Panel's finding that respondent testified falsely at the hearing is found not to be supported, but the Committee's motion to disaffirm is granted to the extent of rejecting the Referee's sanction recommendation and, otherwise, the findings of fact and conclusions of law of the Hearing Panel are confirmed, and respondent is suspended from the practice of law for 18 months.

Reinstatement from the six-month suspension was automatic. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2010/08/an-attorney-previously-suspended-for-six-months-for-lying-to-and-presenting-fabricated-documents-to-a-client-has-been-suspend.html

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Comments

Few realise that reinstatement in the First Department is automatic if the suspension is six months or less. 22 NYCRR § 603.14(a)(1) provides that “[u]nless the Court directs otherwise, any attorney who has been suspended for six months or less pursuant to disciplinary proceedings shall be reinstated at the end of the period of suspension upon an order of the Court.” The only required showing is that “the attorney has fully complied with the requirements of the suspension order and has paid any required fees and costs.” Id. Thus, reinstatement is automatic unless the Appellate Division subsequently orders otherwise. This differs from the situation where an attorney has been suspended for more than six months. Then the attorney must petition the court for reinstatement. 22 NYCRR § 603.14(a)(3). Such petitions are only granted on a showing that, among other things, the attorney “possesses the requisite character and general fitness to practice law”. 22 NYCRR § 603.14(b)(2). Most, including the District of Columbia's Bar Counsel in my own case, will read “upon an order of the Court” in (a)(1) and assume that this means that reinstatement is discretionary.

Stephen

Posted by: FixedWing | Aug 18, 2010 2:23:23 PM

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