Monday, November 7, 2022

"Eyeglasses And A Concealed Camera"

The New York Appellate Division for the First Judicial Department has disbarred an attorney

The charges against respondent arose from three separate matters. First, in 2018, respondent was retained to file a notice of appeal on behalf of client M.C. and was tasked with obtaining trial transcripts for evaluation. The client gave respondent a check for $3,500 expressly earmarked for the transcripts. Respondent deposited this check into his business account but never paid the court reporter or obtained the transcripts. Respondent made withdrawals from this account to pay for his business and personal expenses, leaving a balance of approximately $70.

Respondent's principal defense to these conversion charges was that he believed the $3,500 check, which bore the notation "Court's Transcripts [M.C.]," was a retainer check to spend as he wanted. The Referee found this defense incredible and concluded that respondent: (1) had converted the $3,500 in violation rules 1.15(a) and 8.4(c) of the Rules of Professional Conduct (22 NYCRR 1200.0); (2) neglected a legal matter by [*2]failing to obtain the transcripts in violation of rule 1.3(b); and (3) commingled client funds with personal funds by depositing the client's check into his business account in violation of rules 1.15(a) and 1.15(b)(1).

Second, the Referee found that during a matrimonial trial, respondent made an unauthorized recording of the court proceeding by wearing eyeglasses with a concealed camera. Respondent admitted this wrongful act and the Referee sustained this charge, finding that respondent's actions constituted conduct prejudicial to the administration of justice in violation of rule 8.4(d).

The third series of charges related to a $100,000 loan respondent obtained from a client in 2017 to start his law practice. Despite the self-dealing nature of this transaction and potential for a conflict of interest, respondent drafted the loan agreement and his repayment plan. The client, who was 61 years old, claimed respondent only paid back $25,000 and filed a complaint with the AGC. The Referee found that respondent failed to advise the client that he should retain separate counsel when negotiating the terms of the loan agreement in violation of rule 1.8(a)(2).

Proffered defenses and contentions on appeal

Substantively, respondent claims that the AGC engaged in prosecutorial misconduct by failing to comply with disclosure requirements under 22 NYCRR 1240.8(a)(3) by allegedly withholding e-mail correspondence between the AGC and the complainant M.C.

Respondent further argues that this proceeding should be transferred to the Fourth Department because it is unclear whether the First Department can impartially adjudicate the matter due to his 2017 representation of a now former First Department employee who claimed to have been sexually harassed by a more senior employee. Respondent finds it coincidental that the AGC commenced this disciplinary proceeding against him around the same time of this representation.

Lastly, respondent argues that the Referee failed to give the proper weight to his mitigation evidence, which included an altercation with the NYPD where respondent was injured and arrested. The charges were dropped, and respondent claims the police severely injured his back, requiring pain medication, surgery and causing him to suffer post-traumatic stress disorder, depression, and other problems.

As an alternative to discipline, respondent requests that this Court allow him to certify as retired with OCA, so he can continue to do pro bono work and "make up for all the damage [he has] caused the Bar and profession as a whole."

The AGC opposed and the Court denied the proposal. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2022/11/the-new-york-appellate-d-ivision-for-the-first-judicial-department-the-charges-against-respondent-arose-from-three-separate.html

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