Thursday, December 27, 2007

How Not to Respond to a Malpractice Verdict

Being accused of legal malpractice is not much fun, so being found liable has to be much worse.  But to then try to avoid the judgment by filing for bankruptcy and using other subterfuges can result in a criminal prosecution for contempt, as one New York lawyer discovered.  In a case that shows some people have an aversion to honesty, the lawyer -- a freshly minted law school graduate from two years earlier -- gave a rather inflated view of his credentials to attract the client, and then proceeded to file the lawsuit after the limitations period for the suit expired.  From there, according to a New York Law Journal article (here), the client filed a malpractice claim and won a judgment of nearly $400,000 in 1999; in the meantime, the lawyer was disciplined by the state bar.  Then came the bankruptcy filing to avoid the judgment, which was rejected, and later an agreement by the lawyer to sell his firm and make arrangements to pay the former client the judgment, which he then violated by not making the required payments.  U.S. District Judge Denise Cote, who had presided over the case since 1997, finally referred the matter to the U.S. Attorney's Office for a contempt prosecution.  She has now sentenced the lawyer to a two-year probation plus spending six nights in community confinement.  Judge Cote did not fine him because she wants all his money going to pay the judgment.  At the sentencing, the lawyer is reported to have said, "I'm not sure exactly what to say except that I am sorry."  I'm not sure exactly what else could have been said, because any attempt at an excuse might have sent the Judge through the roof.  A fair question can be asked whether the attorney should remain a member of the bar.  According to the records of the New York State Unified Court System (search here), he remains a member in good standing of the New York bar.  Talk about giving lawyers a bad name. (ph)

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Not disbarring him is an example of everything that is wrong with our profession. We have dishonesty towards the client, incompetence by blowing a standard filing deadline, a questionable bankruptcy filing, refusal to abide by the District Court's order, and now a contempt finding.

Posted by: m | Dec 27, 2007 11:48:41 AM

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