Tuesday, April 9, 2019

28 Years After

A suspended attorney's unauthorized practice drew a five-year suspension from the New York Appellate Division for the First Judicial Department

Prior to 2015, respondent last registered with OCA in 1987, at the time of her admission, but for the 28 years thereafter, she did not register, did not pay the required fees, nor did she update her residential and business addresses as required by 22 NYCRR 118.1(f). As noted, effective March 6, 1998, respondent was suspended until further order of this Court for failure to meet her registration obligations. Respondent asserts that she never received any registration forms, nor notices or calls from OCA advising of her delinquency, and she was unaware of her suspension until late 2014.

Respondent admits that she engaged in the unauthorized practice of law prior and subsequent to her March 6, 1998 suspension: from 1986 to 1987 respondent was employed as an Arbitration Counsel with the New York Stock Exchange (NYSE), the commencement of which pre-dated her January 1987 admission; from September 2004 through January/February 2006, respondent, while suspended, resumed her employment as an Arbitration Counsel with the NYSE; and between 1989 and 2014 respondent served as an arbitrator for the Financial Industry Regulatory Authority (FINRA) during which period she held herself out as a duly registered attorney ; and commencing in 2007 respondent served as a volunteer for the New York City Bar Association's (NYCBA) Monday Night Law (MNL) program (which provides free legal advice to members of the public who make appointments to meet with two partnered attorneys) in which capacity respondent held herself out to the NYCBA and the public as a licensed attorney and dispensed legal advice to MNL's "clients." Respondent continued to participate in the MNL program after she learned of her suspension.

Respondent admits further that she made false statements to the courts, OCA, and the AGC. In May 2015, respondent submitted an affidavit to the Second Department to change the name under which she practices law in which she falsely stated that she was in good standing at the bar and not suspended from practice. Respondent asserts that her claim of good standing was done by mistake, which she tried to correct by contacting the Second Department upon learning of her error.

On May 28, 2015, two days after she executed this false affidavit, respondent registered with OCA, paid delinquent fees for 1987-1989 and 2011-2016, but falsely certified that she was retired under 22 NYCRR 118.1(g)from 1991 through 2010 (during which period respondent was employed as an Arbitration Counsel with the NYSE [2004-2006]) and, therefore, was exempt from paying registration fees for this period. Respondent asserts that she certified as retired for the aforementioned period because she received erroneous information from court personnel, but upon learning of the error she rescinded her retirement claim and paid the fees due.

Additionally, on her May 28, 2015 registration form respondent affirmed that she had completed 196 CLE credits, had retained certificates of attendance/completion for such, and was in full compliance with 22 NYCRR Part 1500's CLE requirements. Respondent, however, produced certificates documenting completion of only 142.85 CLE credits (she needed at least 192 CLE hours at that time). Respondent admits that she reported an incorrect number of CLE credits on the OCA registration form but that this "was an unintentional error made during a stressful time of trying to be reinstated to the New York Bar so that she [could] be financially independent of her emotionally and financially abusive husband, [from] whom she [has] been separated for 17 years."

In July 2015, respondent submitted an affidavit to this Court in support of her motion for reinstatement in which she stated "[t]he reason for my default in registration is that I stopped practicing law in November 1992 and have [n]ot resumed the practice of law, I did not realize I still needed to pay registration dues to remain in good standing. I thought that my registration would lapse without any consequences. In March of 2015, I learned that I misunderstood the New York [S]tate Bar Rules for non-practicing attorneys." Respondent admits that she did not cease the practice of law in 1992 as represented and evidenced by her employment as an Arbitration Counsel with the NYSE between 2004 and 2006, as well as by her participation in the NYCBA's MNL program commencing in 2007.

Mitigation and sanction

Respondent asserts that: she did not willfully fail to comply with her attorney registration requirements as she was unaware of the actual requirements; when she was hired in 1986 she was given the title of Arbitration Counsel by the NYSE which was aware that she had just passed the New York bar exam, and she was in training and under the guidance of a senior attorney until she was admitted to the New York Bar; she did not know of her March 6, 1998 suspension, was never notified of such, and never received any attorney registration forms until May 2015; respondent cooperated with the AGC and paid all registration fees with the exception of the 2017-2018 biennial period due to financial hardship; she has been unable to work in the legal field for the last three years; and her financial situation is dire and it is necessary for her to work and support her family;

Respondent is 65 years old, she has Multiple Sclerosis and is a cancer survivor, she has been cancer free for 18 months, and the procedures connected to her cancer diagnosis continue. The parties assert that while this Court has generally disbarred attorneys who engage in the unauthorized practice of law in violation of a disciplinary suspension order, there are no cases directly on point involving an attorney disbarred for violating a suspension order based on failure to register; and they agree that under the circumstances respondent should be suspended for five years retroactive to September 21, 2015 (date of this Court's order denying prior motion for reinstatement).

The parties assert further that in cases involving intentional misrepresentations to courts, the sanction has ranged from suspensions of varying length to disbarment, depending on the particulars of the misconduct and the aggravation and mitigation presented and they reiterate their position that a five-year suspension retroactive to September 21, 2015 is the appropriate sanction herein.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2019/04/a-suspended-attorneys-unauthorized-practice-drew-from-the-new-york-appellate-division-for-the-first-judicial-department-prio.html

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