Friday, December 10, 2010
The New York Appellate Division for the First Judicial Department has imposed a relatively light two-month suspension in a case involving a conviction of a misdemeanor serious crime.
The court described the facts:
In 1998, respondent began what became a high-volume practice focusing on soft-tissue motor vehicle accident cases. Between June 2003 and January 2005, respondent accepted about 150 referrals from three medical clinics (the Clinics), which constituted approximately 15% of his practice. Respondent purchased narrative medical report packages for $500-$1,000 in each case the Clinics referred to him. In addition, he testified that he agreed to represent 10 to 15 clients from the Clinics that he did not want to represent and paid for medical report package fees for those cases in order to keep referrals flowing. As a result of his arrest and conviction, respondent's law firm dissolved. He is currently a solo practitioner with reduced earnings, handles only a couple of new cases a year and makes per diem appearances for other attorneys, with a nearly 75% decrease in income from $500,000 per year to $130,000. Respondent expressed remorse and testified that he has since learned the importance of credibility and has been diligent in observing the ethical rules.
The misconduct was less serious than cases cited by the court:
While respondent admits that his acceptance of the 10 to 15 cases that he would have preferred not to handle was akin to a bribe and made in order to induce future referrals and thus, constituted solicitation, there was no evidence that respondent's representation of those individuals was in any way compromised. Further, given the reduction in respondent's case load and his remorse and contrition, there is no reason to believe that he poses a future threat to the public. Additionally, while respondent's $100 cash payment to a medical clinic manager is troubling, there is no evidence that the conduct was ever repeated and the one-time payment is considerably less than the repeated conduct which warranted only a three-month suspension in Ehrlich, 252 AD2d at 75. We also find that the payment for medical narratives in the subject 10 to 15 cases is less egregious than the cash payments Ehrlich paid for referrals since the "market price" was paid for the narratives, those documents are useful in prosecuting soft-tissue motor vehicle accident claims, and they represent work actually performed by the Clinics in preparing the reports. As recognized by the Hearing Panel in Meyerson, this type of "quid pro quo arrangement" is "qualitatively less pernicious than the classic cash-for-client solicitations depicted in Ehrlich, Setareh, Hankin and Santalone" (46 AD2d at 145).