Tuesday, April 30, 2013

Is An Addiction To Lying A Mitigating Factor?

The New York Appellate for the First Judicial Department has imposed a nine-month suspension for the following misconduct:

On September 1, 2009, respondent's client asked him to commence a civil action. At that time, respondent did not file the action. To persuade his client that everything was proceeding well, respondent created a fraudulent stipulation of settlement with a fictional index number, caption and settlement amount. Respondent also randomly chose an opposing counsel's name from an attorney directory and forged his signature at the bottom of the document. Respondent gave the false document to his client, misrepresenting that he had settled the matter. He did not file the document with the court. On November 21, 2009, before his client discovered the deception, respondent filed a valid complaint in Small Claims court.

The other attorney eventually learned that respondent had forged his name on the fraudulent stipulation. Once his dishonesty was discovered, respondent wrote letters to his client and the attorney. In the letter to his client, respondent claimed that he suffered from an "addiction [to] lying" that he analogized to an addiction to drugs or alcohol. In the letter to the attorney, he apologized for his actions, offering the explanation that he "did not know how to properly file an action on behalf of [his] client, and felt this would buy [him] time to properly file same." He also stated he had come to the conclusion that he had trouble telling the truth, "be it either personal or business." Further, as he later testified, although he has no other disciplinary history, respondent had previously received two letters of caution from the Second Department and had received sanctions for neglecting to file orders in three Family Court matters. The Presiding Justice of the Second Department had also decertified him from Nassau County's 18-b Panel.

As to sanction:

Here, where respondent not only neglected a legal matter and then created a fictitious document with a forged signature of an innocent attorney in order to conceal the neglect from his client, but also failed to mitigate his troubling history of sanctions, warnings and decertification, we find that a nine-month suspension is appropriate and strikes a balance with the case law...

The answer to the question posed in the title, mercifully, is "no." The attorney must pass the ethics portion of the bar exam and address his "pathological" behavior to get reinstated. (Mike Frisch)


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