Monday, October 3, 2016

An Exceptional Circumstance That Leads To Less Than Disbarment

Conversion of funds drew a five-year suspension rather than disbarment from the New York Appellate Division for the First Judicial Department.

The record reflects that there were numerous illnesses and deaths amongst members of respondent's close family over the span of three years that included the relevant time period, which led to family conflicts and caused respondent to get off track and "overwhelmed" her.

Respondent's 31 years of practice has included two years as an attorney for Administration for Children's Services, eight years as a law secretary for a Justice of the Supreme Court and 21 years in private practice, all without any blemish. Respondent has handled many estates as a guardian for incapacitated persons and every annual accounting was approved. Since respondent's misappropriation and intentional conversion of guardianship funds is undisputed, the issue presented is whether a sanction less than disbarment is warranted.

And "yes" is the answer.

While respondent in the case at bar converted more client funds, on more occasions over a seven-month period, her misconduct was isolated in its nature, and, is arguably less egregious than that in Molinini-Rivera, which involved more than one client matter, repeated false testimony before the Committee, and deceit before a court. As to respondent's lack of medical evidence in support of the "emotional storm that clouded her judgment and led to the extremely aberrational - though serious - misconduct," and, therefore, the absence of a causal link with the misconduct, respondent explained that she did not seek professional help for her depression and feelings of being overwhelmed because she did not believe in such, and because she did not need a professional to explain why she could not get out of bed for days. Indeed, respondent testified to the stress of her own and her family's illnesses and then deaths during the relevant time period, coupled with being called a "heartless murderer" by her grandmother and others for making the painful decision to discontinue her mother's feeding tube. As the Hearing Panel further concluded, "there is no serious doubt that [respondent] was suffering from extreme emotional duress at this time."

Additionally, as the record supports and the Hearing Panel determined, this was an isolated incident on the part of a lawyer with an otherwise unblemished practice history spanning more than 30 years, and there is virtually no likelihood of a repetition of these actions. Respondent fully cooperated with the Committee throughout these proceedings, she is repaying the money taken, and has expressed sincere remorse for her misconduct...

we agree with the Hearing Panel and the Committee that "this is one of those rare cases where exceptional circumstances have been demonstrated" (Molinini-Rivera, 24 AD3d at 40). We thus grant the Committee's motion to confirm the findings of fact and conclusions of law of the Hearing Panel and respondent is suspended from the practice of law for a period of five years.

https://lawprofessors.typepad.com/legal_profession/2016/10/conversion-of-funds-drew-a-five-year-suspension-rather-than-disbarment-from-the-new-york-appellate-division-for-the-first-jud.html

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