Tuesday, February 5, 2019

To Tell The Truth

A law firm associate who stipulated to ethics violations was suspended for three months by the New York Appellate Division for the First Judicial Department

From 2008, through May 2, 2017, respondent was employed as an associate with a law firm, and both allegations in the present petition stem from work he performed for one partner (the partner) at this firm.

In the first instance, respondents's law firm was representing a commercial landlord in a real estate litigation matter. At the request of the partner, respondent was tasked with drafting the client's appellate opposition brief to be submitted to this Court. In or about February 2017, respondent filed the client's brief without the partner's knowledge or direction.

In or about March 2017, not knowing that respondent had already filed the client's brief, the partner asked respondent for his work so that he could review it. Rather than tell the partner that he had already filed the brief, respondent gave the partner what he falsely represented as a draft of the brief. The partner, believing the brief to be only a draft, made revisions which he then gave to respondent. When the partner discovered respondent's actions, he confronted respondent, who acknowledged that he had filed the brief prior to allowing the partner to review it.

In the second instance, respondent's firm was representing a plaintiff in connection with a real estate matter. The client's appellate brief, drafted by the partner, was due to be filed with this Court in November 2016. Respondent, at the partner's request, was tasked with sending the brief and record on appeal to the firm's printing vendor for service upon the opposing counsel and for filing with this Court. Respondent forwarded the relevant documents to the printing vendor, however, he failed to instruct the vendor to serve and file said documents. Nevertheless, respondent falsely told the partner that he had instructed the vendor to file and serve the documents.

In order to conceal from the partner that he failed to properly instruct the vendor, in or about late December 2016, respondent falsely told the partner that there had been a stipulation between himself and opposing counsel to permit an extension for the brief to be filed in late January 2017. To further conceal his misrepresentation, respondent fabricated an opposition brief, which he provided to the partner as though it were genuine. Respondent constructed a false chain of emails to make it appear as if he had received the fabricated brief from opposing counsel, which he forwarded to the partner.

The partner, who believed the opposition brief to be genuine, drafted a reply brief, which respondent falsely told the partner was due on February 10, 2017. The partner forwarded the reply brief to the client for review.

Respondent also falsely told the partner that the client's appeal was calendared for this Court's June 2017 term. On May 1, 2017, when this Court released its June 2017 calendar, the client's appeal was not on it. After noticing the appeal had not been calendered, the partner told respondent he was going to call opposing counsel to find out why the appeal had not been calendared. Respondent then admitted to the partner that he failed to inform the printing vendor to serve and file the subject documents and admitted his deceptions. On May 2, 2017, respondent tendered his resignation from the firm.

Mitigation

The parties agree that there are no aggravating factors outside of respondent's misconduct itself. Moreover, the parties have stipulated to the following facts in mitigation: there was no irreparable harm to any client as a result of respondent's misconduct; during the period at issue, respondent's father was diagnosed with a terminal illness and passed away in May 2018, the stress of which caused respondent to be distracted at work for a significant period of time; and he has no prior disciplinary history in more than 20 years of practicing law.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2019/02/a-law-firm-associate-who-stipulated-to-ethics-violation-was-suspended-for-three-months-by-the-new-york-appellate-division-for.html

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