Thursday, June 11, 2009

False Testimony In Disciplinary Case Draws Disbarment

An attorney who was found to have engaged in 36 counts of ethics violations involving five clients was disbarred by the New York Appellate Division for the First Judicial Department. The lawyer had not helped his cause by attempting to mislead the Departmental Disciplinary Committee:

...although not specifically emphasized in the Committee's papers, the Referee succinctly summarized the factor which separates and defines this matter from all other precedent by stating "[P]erhaps the most serious charge and offense is the deliberate misrepresentations to the Disciplinary Committee." It is not often that this Court is asked to rule on a respondent who has had formal charges sustained against him for giving false testimony in deposition before the Committee during its investigation, in addition to his other misconduct which resulted in disciplinary proceedings. Respondent's lack of candor before the Committee, the Referee and Hearing Panel normally arises in the context of aggravation on the issue of sanction. Here, however, as the Referee correctly noted, respondent's pattern of untruthful testimony while under oath before Committee staff constitutes significant misconduct, entirely independent of all his other misconduct which already justifies his disbarment. Unlike the respondent in Nuzzo...the respondent herein did not confine his false testimony to one deposition involving one client's case. Rather, his false testimony extended through several depositions in 2007, and it involved the matters of three of his clients, as well as his misuse of his client escrow account in connection with evading his judgment creditors and State taxation authorities. Five of the twelve sustained charges alleging violations of DR 1-102(A)(4) involved this misconduct.

(Mike Frisch)

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The rare First Department case that actually makes sense. It appears that on this occasion specific charges of misconduct in testimony before the Disciplinary Committee were brought and proved. So often the tribunal finds this sort of evidence without the accused lawyer even knowing that the issue was before the tribunal.

Notice, however, that this case seems to have been heard by four judges and not the usual five. The opinion makes no mention of this. I wonder why?

Also, four judges, and not five, granted “[l]eave to prosecute appeal as a poor person”. Three of the four judges granting leave were different to the judges deciding the case. It is not often that one sees an order like this – probably because few lawyers ask for it. But I am also very curious what this means. Presumably the judges are not granting leave to appeal to the Court of Appeals. The only fees in a disciplinary case in New York are $20 for the notice of appeal (if the lawyer proceeds by direct appeal) and $45 for a motion fee (such as a motion to reargue or a motion for leave to appeal). Hardly worth bothering with. So is the Appellate Division granting the lawyer full legal aid? That seems quite unlikely and would be interesting news if true.


Posted by: FixedWing | Jun 11, 2009 12:40:43 PM

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