On The Side

A six-month suspension with two years of mental health monitoring has been imposed by the New York Appellate Division for the First Judicial Department

In or about December 2022, the Attorney Grievance Committee (AGC) served respondent with a Notice and Petition of Charges pursuant to 22 NYCRR 1240.8(a)(1) and 603.8(b)(1), alleging professional misconduct arising from his maintaining a side law practice, in violation of the partnership agreement with his law firm, and the underreporting of income earned from his side law practice to tax authorities.

The ACG and respondent now jointly move under 22 NYCRR 1240.8(a)(5) for discipline by consent and seek an order suspending respondent for six months and a two-year period of business and mental health monitoring.

The parties stipulated to the following facts: In April 2020, respondent joined a multinational law firm in San Francisco as a partner. As relevant, the partnership agreement stated, "[i]nasmuch as an attorney's entire productive time should be employed for the Firm's benefit, all compensation received by the attorney for any professional activities are considered Firm earnings." Notwithstanding the terms of the partnership agreement, respondent, during his 17-month tenure at the firm, billed certain clients outside of the firm's standard billing structure. Specifically, respondent billed law firm clients separately for the work performed solely by respondent on the client's behalf and he performed legal work for nonlaw firm clients. In both instances, respondent sent personal invoices to these clients and directed that payment be sent to his personal bank account. However, respondent failed to maintain proper records, receive 1099s from his clients, and inadvertently reported only a portion of his taxable income for fiscal years 2020 and 2021. Between July 9, 2021, and October 26, 2021, respondent created 12 personal invoices which totaled $118,711. Respondent admitted that he was paid on eight of the personal invoices for a total of $85,840. In 2020 and 2021, respondent's income from his side practice was approximately $361,467.

On November 15, 2021, the law firm discovered respondent's misconduct after a client received two invoices: an invoice from the law firm and a personal invoice from respondent. Subsequently, the law firm terminated respondent and filed disciplinary complaints with the AGC and California State Bar alleging violations of the partnership agreement and professional dishonesty.

Respondent admitted that he engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of rule 8.4(c) of the New York Rules of Professional Conduct (22 NYCRR 1200.0) based on the following conduct: (1) failing to deliver to the law firm the earnings he received for his professional activities on behalf of his clients while employed as a partner by the law firm; (2) utilizing a parallel invoice system and creating 12 personal invoices directing clients to make payments to his personal account in violation of the partnership agreement; and (3) using law firm letterhead for personal invoices.

He further admitted that, by failing to report his side practice to the law firm and inadvertently underreporting the taxable income he earned, respondent engaged in conduct that adversely reflects on his fitness as a lawyer in violation of rule 8.4(h).

The parties have stipulated to the following factors in aggravation: that respondent received substantial income at the expense of his law firm through misconduct; and between April 2020 and October 2021, respondent received more than $300,000 in payments from his side practice.

The parties also stipulated to several factors in mitigation: respondent has no previous disciplinary history; respondent filed amended tax returns for fiscal years 2020 and 2021, rectifying his tax reporting mistake; respondent has cooperated fully with the investigation and acknowledged the wrongfulness of his actions; respondent's retention of a law practice business mentor to focus on law office compliance and reporting; respondent's acknowledgement of his need for mental health counseling; and the commencement of treatment for these issues.

(Mike Frisch)