Wednesday, March 14, 2012
A dispute between counsel over a legal fee has resulted in a 2 1/2 year suspension imposed by the New York Appellate Division for the First Judicial Department. A referee had recommended disbarment; a hearing panel favored a five-year suspension.
The New York attorney agreed with a Maryland lawyer (who sent him the case) to split the fee in a medical malpractice case on a 50-50 basis. The New York attorney filed the case and did not believe the Maryland lawyer should get his share when the case settled for $4.25 million.
The Hearing Panel's conclusions:
The Panel found that, after Apfel [the Maryland attorney]retained counsel, he and respondent "embarked upon an acrimonious, scorched earth litigation disproportionate to the fee dispute. It was at that point that Respondent [at the expense of the Leskinen family] began to subvert the settlement approval process and attempt to use it to achieve a tactical advantage in the fee dispute." Deferring to the Referee's credibility conclusions, the Panel also found that "Respondent's claim that Mrs. Leskinen signed a separate retainer agreement with [his] firm in September 1998 is just not supported . . . As a consequence, every time Respondent asserted under oath or in a court filing that there was such an agreement, it was a false statement." In recommending a five-year suspension, the majority considered that the Committee had not sought disbarment, the lack of precedent supporting disbarment, that the misconduct was not directed at the client (other than indirectly interfering with payment), that the conduct could be considered a single episode, that the misconduct was essentially limited to one set of circumstances, and the lack of prior discipline.
In reducing the sanction, we note that despite the number of sustained charges, they arise from a course of conduct in the pursuit of legal fees in one matter in an otherwise unblemished career of an attorney with a good reputation. As conceded by the Committee in urging a five-year suspension rather than the disbarment recommended by the Referee, respondent's misconduct was not directed at his client and did not extend to other matters. His cooperation with the Committee, in the area of document production and admissibility, was "exemplary" and respondent submitted evidence attesting to his good character.