Saturday, June 2, 2012
The New York Appellate Division for the First Judicial Department suspended an attorney for six months for the following misconduct:
This matter arises from respondent's representation of a client in a civil case and a case in the U.S. Bankruptcy Court regarding the administration of real property. In a traverse hearing in the civil action, the Special Referee found that contrary to respondent's sworn assertions that he personally served the defendants in that case in February 1999, he handed the papers to a receptionist and did not personally serve them until June 1999. The Special Referee found respondent's testimony to be "confused, disingenuous or downright dishonest, and plainly incredible." In the bankruptcy proceeding, the court found that respondent "acknowledged that he had no contemporaneous time records to support [his claim for attorney fees and disbursements], that he permitted other time records to be left out in the rain and rendered illegible and that he destroyed any remaining legible time records ... during the pendency of litigation."
In May 2009, the DDC petitioned this Court for an order giving collateral estoppel effect to the two decisions and finding respondent guilty of professional misconduct. By order dated June 14, 2010, this Court granted the DDC's petition. We found that, based on these decisions, respondent engaged in misconduct in violation of DR 1-102(A)(4) (conduct involving dishonesty, fraud, deceit, or misrepresentation) and DR 1-102(A)(5)(conduct prejudicial to the administration of justice). We referred the matter back to the DDC for a hearing and to recommend an appropriate sanction.
Following the hearing, the respondent submitted a letter citing mitigating circumstances including medical problems, depression and financial pressure. The Hearing Panel rejected this evidence because respondent failed to establish a causal link between those factors and his misconduct. The Hearing Panel issued a report finding that respondent "intentionally lied under oath" and "destroyed important evidence," and recommending a six-month suspension.
The court declined to impose the sanction effective at an earlier date. (Mike Frisch)