Tuesday, March 8, 2011

The Sting

The New York Appellate Division for the First Judicial Department imposed a three month suspension of an attorney convicted of misdemeanor solicitation of legal business in violation of New York law. The facts of the offense:

This conviction arose out of a sting operation targeting a medical clinic called the Medical Arts Center, in Queens County, whose manager, Arthur Bogoraz, ultimately pled guilty to enterprise corruption based on an insurance fraud scheme. The incident that led to respondent's guilty plea occurred when a staff member at the medical clinic telephoned respondent and informed her that the clinic had a patient who had sustained potentially serious injuries, but who had declined the clinic staffer's suggested referral to respondent. Respondent then instructed her paralegal to seek out and persuade that patient to retain her law firm. The purported patient was actually an undercover officer, and respondent was charged with violations of Judiciary Law sections 479 and 482, resulting in her plea of guilty to the charge under section 479.

The Depatmental Disciplinary Committee had sought an eighteen month suspension.

The court rejected allegations beyond the facts that established the conviction. The allegations were premised on Borogaz's testimony. His "outright contradictions and purported failures of memory..." justified rejecting his evidence.

The court also rejected claims that the attorney had engaged in conflicts of interest by simultaneously representing drivers and passengers in automoblie collision cases:

We reject the Committee's contention that an aggravating factor is established by respondent's simultaneously representing drivers and passengers in automobile collision cases. Respondent acknowledged that on a number of occasions over the years she had represented both drivers and passengers in the same accident, but explained that she only did so after (1) ascertaining that there was no viable cross-claim for negligence on the driver's part and that therefore the clients' interests were not adverse, (2) orally advising the clients of the nature of the potential conflict and the benefits and disadvantages of dual representation, and (3) having them sign a waiver form. Given the Hearing Panel's finding that respondent was credible, which we perceive no basis to dispute, we accept this assertion. It is the Committee's position that nevertheless the conflict created by such a situation is non-waivable...and that in any event the waiver forms respondent used were insufficient. However, [the cited case] concerned an attorney who "clearly anticipated that a cross claim would be interposed" against his driver client, but nevertheless also undertook to represent the driver's passenger. It does not stand for as broad a proposition as that suggested by the Committee. Neither [the cited case] nor the then-applicable Disciplinary Rule, DR 5-105(A), categorically preclude the possibility of a proper waiver where there is no viable cross-claim against the driver. Nor does [another cited case] support the Committee's position; there, too, the attorneys "were aware of the potential conflict" and yet failed to advise the clients of the conflict. (citations omitted)

(Mike Frisch)


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