Friday, March 13, 2015

Death Be Disclosed

An attorney who had failed to disclose his client's death prior to settling an employment claim was suspended for one year by the New York Appellate Division for the Second Judicial Department.

He had lost direct contact with the client and was communicating with his mother, who purportedly had power of attorney.

On April 14, 2008, the eve of trial, an agreement to settle the action for $10,000 was reached between the respondent and [defense counsel] Davis. The respondent does not recall the specific date when he learned of his client's death, but claims that it was after the settlement was reached. On or about April 14, 2008, the respondent sent a power of attorney form to "Marie Rose Andree Conserve," seeking her signature thereon and her authorization to sign Lorquet's name to the settlement check, and to deposit the check into the respondent's escrow account. The power of attorney was faxed to a number with a Florida area code, and to the attention of an individual named "Shirley," a person allegedly unknown to the respondent. Later that day, the respondent received, by return fax from Shirley, a signed power of attorney purportedly executed by Conserve.

Efforts to complete the settlement were extensive and eventually broke down. The attorney held the proceeds.

The court

The Special Referee properly found that there was no evidence to support the respondent's claim that his client authorized him to settle the employment litigation, or that he could do so based upon the alleged power of attorney in favor of Lorquet's mother. Moreover, once the respondent, an experienced litigator, learned of his client's death, he knew that he could not provide the requested settlement documents to Davis. While the respondent had no obligation to seek the appointment of a personal representative for the estate, the Special Referee properly concluded that the respondent had an obligation to inform Davis of Lorquet's death, thereby revealing that the settlement process could not be completed, and that further proceedings in the employment litigation were automatically stayed. We find that, despite Davis's repeated requests that the respondent provide him with the settlement documents, the respondent knowingly chose not to disclose his client's death, deceiving his adversary for more than one year (cf. Matter of Forrest, 265 AD2d 12). Further, the respondent's claimed authority to negotiate the settlement check was based on his transactions with a person unknown to him. He learned from Zarra, a person then unknown to him, that Conserve, a person purporting to be his client's mother, had executed a power of attorney, and he received a power of attorney purportedly signed by Conserve from a person named "Shirley," who also was unknown to the respondent. Based on this evidence, we find that, when the respondent negotiated the settlement check, he misrepresented to the bank that he had the authority to endorse it on behalf of Lorquet.

The attorney was ordered to release the proceeds to the Lawyers' Fund for Client Protection. (Mike Frisch)

Bar Discipline & Process | Permalink

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