Thursday, March 13, 2014

Mitigation Rejected

An attorney who had converted entrusted funds to pay personal expenses was suspended for two years by the New York Appellate Division for the Second Judicial Department.

The attorney had been suspended on an interim basis and here had sought a "time served" disposition.

The court rejected mitigation evidence based on a series of traumatic events in the attorney's life.

In mitigation, the respondent asserts that she made mistakes, and attributes them to the fact that during the relevant time period she was distracted and unfocused owing to personal circumstances in her life, i.e, the birth of a child in September 2008, the death of her grandmother in August 2009, which left her devastated; a second pregnancy; the death of her father in May 2011; and the death of her aunt in June 2011. The respondent's therapist, Lois Winston, opined that the respondent had suffered from postpartum depression, major depression, and posttraumatic stress disorder, all resulting from these events in her life, which occurred one after another. Winston further opined that the respondent's misconduct was a direct result of her depression, which impaired her ability to focus. In seeking a one-year suspension, applied nunc pro tunc from the date of her interim suspension, the respondent asks this Court to also consider the fact that she did not act with venality, no clients were harmed, she is remorseful, she cooperated with the investigation, she was relatively inexperienced, and her general reputation is that of an honest attorney.

We agree with the Special Referee's finding that the testimony of the respondent's therapist was not credible. The evidence revealed that the respondent never sought professional help during any of the years she experienced the traumas she identifies, and began therapy in August 2012, only after she retained counsel and was suspended by this Court. Moreover, the respondent's alleged depression cannot explain why her inattention affected only escrow matters and not other aspects of her law practice. It is far more likely that the respondent's admitted errors were a product of not having implemented basic accounting procedures to monitor her escrow account, which were compounded by her failure to review her bank statements or monitor her accounts online. While the respondent's claim of depression as the cause of her misconduct is not credible, this Court nonetheless acknowledges that she did experience many emotional events in a relatively short time frame.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2014/03/an-attorney-who-had-converted-entrusted-funds-was-suspended-for-two-years-by-the-new-york-appellate-division-for-the-second-j.html

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