Thursday, May 8, 2014

Lost And Found Too Late

A three-month suspension was the sanction imposed on a law firm associate by the New York Appellate Division for the First Judicial Department

This disciplinary matter arises out of respondent's admitted misconduct with respect to a client's claim to recover payment on two promissory notes for amounts totaling $120,000. As a fourth-year associate at his firm, respondent was assigned the case in November 2003, but he thereafter misplaced the promissory notes. Rather than disclosing that fact, respondent made repeated misrepresentations to both the clients and the firm, to create the false impression that he was prosecuting the action when he was not. He fabricated documents to falsely claim that he had commenced the action, and, later, that he had obtained a default judgment and was attempting its enforcement. Only after respondent left the firm in October 2005 did he locate the promissory notes, at which time the firm and the clients were notified. However, the claim was ultimately dismissed on statute of limitations grounds. The clients' claim was paid by the firm's malpractice insurance carrier, with the firm responsible for its $10,000 deductible. There is no indication in the record that respondent contributed any funds to the settlement, or to repay his former firm.

Mitigation

we also agree with the Panel that significant mitigating factors are presented here: respondent had no prior disciplinary history, and both before and since that time he has enjoyed a reputation for competence at his legal work. Two partners of respondent's at his current firm testified to the aberrational nature of his misconduct, and to his honesty, trustworthiness and reliability. Also, importantly, he was experiencing extraordinary pressures during that time period, relating to the health and well-being of his family. His then three-year-old son was being evaluated, and was ultimately diagnosed with autism; his pregnant wife learned that she carried the gene for cystic fibrosis. He had to refinance his home to cover the expenses associated with his son's condition and his wife's pregnancy complications. On balance, we agree with the Referee and the Hearing Panel that a three-month suspension is the appropriate sanction here.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2014/05/a-three-month-suspension-was-the-sanction-imposed-on-a-law-firm-associate-by-the-new-york-appellate-division-for-the-first-ju.html

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