Thursday, January 27, 2011

Traveling Man Has Selective Focus

The New York Appellate Division for the First Judicial Department has imposed a one-year suspension of an attorney. According to the court's opinion, "a federal jury found that [the attorney] had indeed induced [a client] to retain him by furnishing a resume that patently misrepresented [his] experience as a litigator." The jury awarded a total of $385,000. The underlying suit had been dismissed as a result of the attorney's errors. Professional discipline was imposed against the attorney in 2003.

Misconduct was found here for the attorney's efforts to frustrate the collection of the judgment. He pled guilty to criminal contempt and was sentenced to probation with six days confinement in a halfway house. The sanction was for the contempt conviction and subsequent probation violation:

As to his violation of probation, on May 28, 2009, respondent pleaded guilty to traveling outside the judicial district without court leave — to Paris in 2008 and to Rome in March 2009. Respondent also pleaded guilty to lying to a probation officer in March 2009 concerning the Paris trip, which he only acknowledged after being required to produce his passport for inspection. While professing unawareness of the travel restrictions before the Hearing Panel, respondent had conceded such knowledge at his plea allocution some four months earlier. In a post-hearing submission that included documents relevant to his probation violation, respondent admitted that, in addition to the two European trips, he had traveled to Arizona and Boston in 2008 without court leave.

On August 6, 2009, respondent was sentenced in Federal District Court on the probation violation. While commenting on respondent's "various dishonest and deceptive maneuvers to avoid paying a judgment that he owed [his former client]," which was construed as a "pattern of deception," the court concluded that "this is something deeply embedded in his character, not something that's going to change . . . during a period of supervision." The court thereupon sentenced respondent to 30 days' imprisonment without any further period of supervision.

In mitigation, the Hearing Panel noted that the reason for respondent's European travel was to participate in marathons in connection with his fund-raising efforts on behalf of the Leukemia & Lymphoma Society, which was prompted by his diagnosis with lymphoma. The Panel also noted that respondent's malpractice in connection with the Baker matter had already been the subject of a judgment in federal court and a prior disciplinary proceeding in this Court.

As to sanction:

While respondent was sentenced for his contumacy, satisfaction of the judgment to which his contempt related was only motivated by the commencement of the instant disciplinary proceedings. While this Court accepts that respondent's travels were undertaken for a worthy purpose, it remains that he made no attempt to obtain the requisite leave of court and subsequently demonstrated a lack of candor, both to his probation officer and the Hearing Panel, concerning his awareness of the restrictions imposed on his mobility. Maintaining that his misconduct was not undertaken with a venal motive, respondent notes that it relates to a single matter and attributes his repeated violations of court orders to a "failure to focus" on the terms of his probation. Yet respondent displayed remarkable focus in his efforts to avoid making payments on the Baker judgment, including resorting to the reorganization of his law practice as a PLLC, bankruptcy, and willful disobedience of court orders, all of which were exacerbated by his violation of the terms of his probation and his misrepresentations before the Hearing Panel. The extent of an attorney's misconduct may warrant a substantial sanction even where only a single matter is involved...

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2011/01/the-new-york-appellate-division-for-the-first-judicial-department-has-imposed-a-one-year-suspension-of-an-attorney-according.html

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