Thursday, September 2, 2010

Rapport With Opposing Counsel Does Not Prevent Ethics Lapse

A public censure was imposed by the New York Appellate Division for First Judicial Department in a matter in which the attorney had neglected a small claim and falsely notarized the client's signature on a document. The court set out the facts:

Respondent testified before the Referee that he had not wanted to file a complaint or engage in motion practice "unless it became absolutely necessary," because the claim had only nuisance value, due to weak evidence of liability or injury, and he did not want to diminish the potential settlement amount. In addition, he thought he "had a good relationship or rapport" with opposing counsel and "did not expect them to get so hard-nosed," "insisting on the statute [of limitations]" over a "very small claim." Respondent asserted that he felt assured a settlement would be reached, but once counsel told him the statute of limitations had run, he felt no recourse but to file a complaint and hope that he could defeat a dismissal motion by invoking equitable estoppel, and thereby force Metro-North to negotiate; however, he believed that Metro-North's offer of $2,500 was insufficient. He stated that he knew the limitations period was 1 year and 30 days and therefore affirmed in the complaint that it had been duly commenced within 1 year and 90 days.

Respondent claimed that he had no intention of misleading anyone when he falsely notarized his clients' signatures as having been made in his presence, and he was merely trying to "speed up the process." He maintained that there was "nothing fraudulent" or "venal" about such action, which did "not harm anybody," although it was "wrong" and he promised not to do it again. He also stated that, at the time he wrote his affirmation in opposition to Metro-North's motion to dismiss, he sincerely believed that his failure to timely file a complaint was due to opposing counsels' settlement posture, notwithstanding the fact that, according to respondent's own version of events, he merely spoke to one attorney at the PAL hearing, left a message after that, and subsequently asked for a transcript of the hearing from someone who did not identify himself over the telephone.

A suspension was not required under the circumstances:

...given the mitigating circumstances here, including that respondent did not profit from his misconduct, we find that the sole misrepresentation in respondent's affirmation to Supreme Court concerning the extent of settlement negotiations between himself and the attorney for Metro North is not enough to warrant the more serious sanction of suspension.

(Mike Frisch)

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Settlement usually is the best option -- especially when you consider your claim of nuisance value and know that it is time-barred.


Posted by: FixedWing | Sep 2, 2010 7:19:17 AM

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