1 Gold Group February 2014 SUNY Buffalo Law Alumni Law Association CLE Presented by Attorney John V. Elmore A. FOURTH DEPARTMENT ROUNDUP (See Appendix) B. TRUST ACCOUNT ISSUES 1) Failure to oversee a) The Court of Appeals has upheld the public discipline of a divorce attorney for failing to oversee his attorney trust account, in which his non-attorney brother embezzled millions of dollars from clients of the firm while acting as the law firm s bookkeeper. The Court stated that the attorney had ceded an unacceptable level of control over the firm accounts to his brother, thereby creating the opportunity for the misuse of client funds. Had respondent been more careful in supervising the accounts and his employee, he would have been aware of the malfeasance at a much earlier time when he could have substantially mitigated the losses. Mtr. of Galasso, 19 NY3d 832 (2012). On remand, the Second Department has imposed a two-year suspension (decided February 27, 2013). b) Respondent attorney whose wife and law partner stole from an estate account for which he was also a signatory suspended for two years. Court notes that the lawyer never reviewed the banking records attendant to the estate account and also had an opportunity to observe the transfer of estate assets into other accounts to which he was a signatory, including the operating account. Mtr. of Jones,100 A.D.3d 57, 953 N.Y.S.2d 92 (2nd Dept., 2012). 2) Fraudulent use of trust account to avoid creditors a) The Second Department has imposed a two-year suspension on an attorney who intentionally assisted his client to avoid the attachment of a tax lien by allowing the deposit of that client s funds into his attorney trust account. The Court found the respondent attorney s conduct to be no less egregious on the grounds that he acted on behalf of another rather than himself. Mtr. of Pritikin, (2nd Dept., decided February 5, 2013). 3) Bail Funds a) An immigration attorney receiving a bond refund from monies posted by a third party on behalf of a client could not justify paying the money to himself for the client s legal fees without the knowledge and permission of the third party who had provided the funds. Disbarred. Mtr. of Chmura, 99 A.D.3d 239, 951 N.Y.S.2d 553 (2nd Dept., 2012), lv. den. 20 N.Y.3d 983.
2 4) Business transaction with client a) Attorney representing clients as sellers in real estate transaction claimed that after the closing, the clients had offered to lend him $4,000 to pay for work being done on his law office. The attorney was found to have misappropriated funds entrusted to him by withdrawing the funds directly from his attorney trust account by check payable into his business account. Moreover, the attorney engaged in an improper business transaction with the clients and that he failed to advise them in writing regarding the inherent conflict of interest and right to obtain independent counsel or to obtain their consent to the transaction in writing pursuant to Rules 1.8(a)(2) and (3). Mtr. of Collins, 100 A.D.3d 257, 952 N.Y.S.2d 616 (2nd Dept., 2012). One-year suspension. 5) Scams against lawyers continue C. CRIMINAL LAW PRACTICE 1) Duties of Prosecutors a) The Fourth Department reduced a conviction of First Degree Criminal Contempt to Second Degree Criminal Contempt, invoking its interest of justice discretion, based upon prosecutorial misconduct by an Ontario County Assistant District Attorney who had previously been reprimanded by the Court in three other criminal appeals. Although the Court Opinion does not specify the nature of the misconduct, media reports indicate that the prosecutor made comments derogating the defendant for asserting certain of his Constitutional rights. Although the Court found that the misconduct did not require complete reversal, it pointed out the special responsibilities of prosecutors to safeguard the integrity of criminal proceedings and fairness in the criminal process. People v. Huntsman, 96 A.D.3d 1387, 946 N.Y.S.2d 327 (4th Dept., 2012). b) The Administrative Board has established rules for prosecutors which apply when they discover that a defendant has been convicted of a crime that he did not commit. New Rule 3.8(c) of the Rules of Professional Conduct specifies what a prosecutor must do upon knowledge of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted. Similarly, under new subdivision 3.8(d), the prosecutor shall seek an appropriate remedy upon clear and convincing evidence establishing that a defendant was convicted of an offense that the defendant did not commit. However, 3.8(e) provides a safe harbor provision stating that the prosecutor s independent judgment, made in good faith that the new evidence is not of such a nature to trigger these obligations, even though subsequently determined to have been erroneous, will not constitute a violation of this Rule.
3 2) Duties of Defense Counsel a) The U.S. Supreme Court has recently ruled that the duty announced in Padilla v. Kentucky, 550 U.S. 356 (2010), in which criminal defense attorneys were required to inform non-citizen clients of the risks of deportation in entering a guilty plea, is not retroactive. Chaidez v. United States, (decided February 20, 2013). b) Malpractice - The Court of Appeals has reversed a Fourth Department decision which had awarded pecuniary damages for loss of liberty arising from a criminal defense client s allegedly wrongful incarceration based upon the legal malpractice of the former attorney. Dombrowski v. Bulson, 19 N.Y.3d 347 (2012). c) A criminal defense attorney, during a break in Court proceedings, examined and photographed papers lying on the prosecution table without seeking or obtaining permission. The attorney later used one of the documents in an application for bail pending appeal. The Third Department censured the attorney for engaging in undignified or discourteous conduct that adversely reflects on his fitness as a lawyer, pursuant to Rule 8.4(h) and 3.3(f)(2). Mtr. of Kindlon, 98 A.D.3d 1227, 950 N.Y.S.2d 923 (3rd Dept., 2012). 3) Conflicts a) The Third Department imposed a suspension (stayed) on a defense attorney representing a client in a criminal matter; the attorney had also established an attorney-client relationship with the client s girlfriend in a telephone conversation in which she accused the client of criminal activity. The defense attorney later used the information gleaned during the telephone conversation to cross-examine the girlfriend, thus using information obtained relating to the representation of the girlfriend to her detriment. Rules 1.7(a), 1.8(b), and 4.3. Mtr. of Urda, 99 A.D.3d 1165, 953 N.Y.S.2d 707 (3rd Dept., 2012). b) The Fourth Department rejected an ineffective assistance of counsel claim in a case in which defense counsel engaged in the successive representation of co-defendants, despite noting that defense counsel and the prosecutor had a duty to recognize the potential conflict. People v. Lewis, 97 A.D.3d 1097, 947 N.Y.S.2d 745 (4th Dept., 2012). c) In reversing a ruling by the Fourth Department, the Court of Appeals has stated that we have never held and decline now to hold, that the simultaneous representation of clients whose interests actually conflict can be overlooked so long as it seems that the lawyer did a good job. Here the defense counsel engaged in a simultaneous representation of a key prosecution police witness in an unrelated civil matter. The Court found there was an actual conflict of interest because the police testimony was that the defendant had confessed to raping his daughter. There was nothing in the record to indicate that the
4 defendant had effectively waived any conflict of interest. People v. Solomon, 20 N.Y.3d 91 (2012). 4) Judicial Criticism a) Albany DA censured for his repeated public criticism of a county court judge who had replaced his office with a special prosecutor, stating that the judge s decision was a get-out-of-jail-free card for every criminal defendant in New York State. Rule 8.4(d). Mtr. of Soares (Appendix, p. 17). b) An attorney who was retained by a criminal defendant to represent him in an attempt to withdraw a guilty plea, accused the judge of committing crimes, condoning crimes by other public officials, and of skewing his decisions for financial or political reasons. The judge ordered defense counsel to show cause why she should not be sanctioned for making frivolous statements. In response, defense counsel continued and even expanded upon her previous allegations. The Court imposed a $2,500 sanction upon the attorney which was upheld by the Third Department. Shields v. Carbone, 99 A.D.3d 1055, 952 N.Y.S.2d 649 (3rd Dept., 2012). D. DISCIPLINARY PROCEDURE 1) Threatening to file grievance against opposing counsel a) In a reciprocal discipline matter, a lawyer had been publicly reprimanded by the Indiana Supreme Court for violating Rule 8.4(d) by using the threat of filing a disciplinary grievance against an attorney to obtain a settlement proposal in a prospective civil matter. The First Department found that this also constitutes a violation of engaging in conduct prejudicial to the administration of justice under the New York Rules, and censured the respondent attorney. Mtr. of Dimick, (1st Dept., decided February 14, 2013). 2) Diversion programs limitation a) The Second Department refused to interpret its diversion rule, which pertains to alcoholism or other substance abuse or dependency to be interpreted to include gambling. As a result, the respondent attorney tendered his disciplinary resignation in the face of charges that he converted client funds for his own benefit to the tune of $700,000. Mtr. of Sprei, (2nd Dept., decided January 30, 2013) 3) Fifth Amendment and disciplinary proceedings a) In a proceeding in which disciplinary counsel sought interim suspension of a respondent attorney, the First Department affirmed the principal that while an attorney may not be suspended on an interim basis solely for
5 asserting his Fifth Amendment right against self-incrimination, the attorney cannot assert such right merely to avoid production of records or documents pursuant to the Rules of Professional Conduct, and that an adverse inference may be drawn from such invitation of the privilege. Mtr. of Reis, 96 A.D.3d 53, 942 N.Y.S.2d 101 (1st Dept., 2012); later disbarred February 21, E. SEX 1) Inappropriate sexual contact a) Respondent attorney engaged in unwarranted and highly inappropriate conduct of a sexual nature, including exposing his genitals to opposing counsel, twice kissing her on her neck and shoving both of his hands inside her blouse and bra and touching her breasts. Two-year suspension. Mtr. of Baker. (Appendix, p. 21). b) Attorney suspended for nine months for engaging in non- consensual physical contact, i.e., groping the woman against her will and placing her hand on his groin for sexual pleasure. In noting that the attorney went beyond making sexually offensive or suggestive comments, the First Department cited to the Fourth Department case of Mtr. of Fineman, 225 A.D.2d 200 (4th Dept., 1996). Mtr. of Greenberg, 94 A.D.3d 152, 941 N.Y.S.2d 86 (1st Dept., 2012). 2) Bigamy a) Attorney who entered into a bigamous marriage with his long-time mistress in Jamaica was suspended for six months, admitting that he had lied to the Jamaican official in stating that he was single. The Court noted that the willful misrepresentation to government officials or courts was an aggravating factor, stating that the fact that the misconduct involves his personal life only, does not necessarily warrant a sanction less severe than suspension. Mtr. of Rosenzweig, (1st Dept., decided February 26, 2013). 3) Other misconduct a) An attorney in the Third Department was suspended for two years after he became obsessed with the family of an adolescent female whom he had represented as an attorney for the child. The attorney engaged in numerous electronic communications with the adolescent female s family members and others, involving her alleged drug use and sexual activity all under the guise of his concern for her well being. The communications were often vulgar and profane. As a result, the respondent attorney entered a plea of guilty to two counts of disorderly conduct and was the subject of a two-year Order of Protection. Mtr. of Keegan, 95 A.D.3d 1560, 944 N.Y.S.2d 771 (3rd Dept., 2012).
6 F. OTHER 1) Inappropriate interaction with police a) While being arrested for a DWI-related offense, an attorney attempted to bribe a police officer into dropping the charges with his personal check for $2,000. Following his conviction for misdemeanor DWI and giving unlawful gratuities to a police officer, the Court imposed a sanction of censure, noting that the respondent attorney was acting in his capacity as a private person and that, under the circumstances, his judgment had been impaired. Mtr. of Krishnan, 99 A.D.3d 207, 950 N.Y.S.2d 135 (1st Dept., 2012). b) Six days after receiving a speeding ticket, an attorney wrote a letter to traffic court on the letter of his law firm, demanding that the ticket be dismissed immediately, in part accusing the officer (falsely) of having called him a Jew kike. Unfortunately, the attorney was unaware that a video tape and microphone recorded everything that the trooper had said during the traffic stop. The respondent attorney subsequently failed to be truthful in a conversation with the trooper s supervisor, which was also recorded. The respondent attorney s accusations against the trooper resulted in a nine-month- long internal affairs investigation, and the Court noted that although the claim against him was determined to be unfounded, the incident would remain documented in the trooper s personnel file. Here the Court imposed a suspension, noting respondent cavalierly attributed anti-semitic slurs to an innocent person in a manner which could have had devastating consequences to that person s career. This act alone warrants a harsh sanction, not to mention that it was done to gain an advantage in an administrative proceeding. Mtr. of Dear, 91 A.D.3d 111, 934 N.Y.S.2d 141(1st Dept., 2011). 2) Unauthorized practice a) A business woman paid legal fees to a person who was not actually a lawyer, believing that that person was a member of the respondent s law firm and would handle a lawsuit in a commercial contract dispute. The non-lawyer prepared a summons, verified complaint, and attorney verification and listed in those pleadings the name of the respondent s law firm as attorney of record. The respondent, at the request of the non-lawyer, signed the summons and the verified complaint, as well as attorney verification. The attorney knew at the time that neither he nor his law firm intended to actually represent the business woman, but went ahead and filed the action. The attorney was publicly censured for aiding a non- lawyer in the authorized practice of law (former DR 3-101) and for signing the false attorney verification. Mtr. of Bratkovsky, 99 A.D.3d 79, 949 N.Y.S.2d 477 (2nd Dept., 2012). b) In December 2012, the Governor signed into law a bill which will make it a Class E felony to hold oneself out as an attorney and thereby cause a
7 monetary loss of $1,000 or more to victims. This elevates the penalties under the current Judiciary Law statute, in which the unlicensed practice of law is a misdemeanor. The new law is effective November 1, ) Improper communication with an unrepresented person; circumvention of CPLR a) An attorney represented the landlord in a dispute involving the roommate of a deceased tenant who claimed to be the tenant s domestic partner and was seeking succession rights. The attorney issued subpoenas to the tenant s adult children and filed a motion in court seeking discovery. The adult children communicated with the attorney requesting that they be allowed to appear at the attorney s office to avoid mandatory court appearances. The attorney withdrew his motion for discovery, but did not tell opposing counsel he was examining the adult children under oath at his office. The lawyer for the roommate learned of the questioning and moved for sanctions, and the trial court suppressed the testimony and awarded attorney fees. Moreover, disciplinary charges were filed, alleging that the respondent attorney had violated CPLR 408 by deposing witnesses without informing opposing counsel. The the First Department censured the attorney for intentionally circumventing the CPLR, and also observed, As unrepresented lay people, it is doubtful that they were aware that they were not compelled to answer all of the questions. Mtr. of Winiarsky, 957 N.Y.S.2d 102 (1st Dept., 2012). 4) Domestic relations rules a) The First Department has ruled that an attorney who filed an action seeking fees for services rendered in a domestic relations matter is not barred from claiming the fees, despite his failure to comply with 22 NYCRR The attorney had failed to file the executed signed retainer agreement with the Clerk with the Statement of Net Worth within 10 days of its execution; however, the attorney subsequently complied with the requirement by filing the executed copy with an updated Statement of Net Worth. The Court held that because there had been substantial compliance with the Domestic Relations Rules, the attorney would be allowed to seek recovery for fees or for services rendered but not yet paid for. Daniele v. Puntillo, 97 A.D.3d 512, 949 N.Y.S.2d 365 (1st Dept., 2012), lv. den., 20 N.Y.3d ) Dishonesty in application for admission a) An attorney s admission to the Bar was revoked by the Third Department pursuant to Judiciary Law 90(2). The Court stated that the attorney clearly failed willfully short of submitting an application for admission that properly and with candor supplied all requested information. The application submitted by respondent had the effect of deflecting the appropriate inquiry by this Court s Committee on Character and Fitness rather than apprising it of
8 relevant potential character and fitness concerns. Mtr. of Olivarius, 94 A.D.3d 1224, 941 N.Y.S.2d 763 (3rd Dept., 2012). b) The Third Department imposed the penalty of disbarment rather than revocation of admission upon an attorney who had falsely stated in his application for admission that he was not four months or more in arrears in payment of child support and that he had not applied for a discharge in bankruptcy. Moreover, the respondent attorney had failed to reveal that he had been suspended for two years for professional misconduct by a Federal District Court of Puerto Rico, also for his failure to satisfy child support arrears. Mtr. of Melendez, 101 A.D.3d 1229, 957 N.Y.S.2d 740 (3 rd Dept., 2012). RODERICK QUEBRAL Principal Counsel Attorney Grievance Committee Appellate Division, Fourth Department 438 Main Street, Suite 800 Buffalo, NY (716) FAX us
9 APPENDIX SELECTED 4th DEPT. DECISIONS JAN 2012 THRU FEB 2013 MATTER OF MOHAMMED J. ATHARI, AN ATTORNEY, RESPONDENT. GRIEVANCE COMMITTEE OF THE FIFTH JUDICIAL DISTRICT, PETITIONER. -- Order of censure entered. Per Curiam Opinion: Respondent was admitted to the practice of law by the Appellate Division, Third Department on January 26, 1999, and maintains an office in Utica. The Grievance Committee filed a petition charging respondent with acts of professional misconduct, including failing to comply with two court orders, falsely notarizing client signatures on certain documents and failing to comply with the former Disciplinary Rules of the Code of Professional Responsibility regarding the maintenance of trust account funds and required records. Respondent filed an answer denying material allegations of the petition, and a referee was appointed to conduct a hearing. Prior to the hearing, the parties resolved all outstanding factual issues and amended pleadings were filed. Based upon the amended pleadings, the Referee filed a report, which the Grievance Committee moves to confirm. Respondent opposes the motion in part, and he appeared before this Court and submitted matters in mitigation. The Referee found that, in May 2005, Supreme Court, Oneida County, entered an order directing respondent to deposit into his trust account certain legal fees pending the resolution of a dispute between respondent and another law firm regarding his entitlement to the fees. The Referee further found that, although respondent initially deposited the disputed legal fees into his trust account, he disbursed funds from his trust account for a personal matter in June 2005, causing the balance in that account to fall below the amount necessary to comply with the order of the court. With respect to a separate matter, the Referee found that, in September 2005, Supreme Court, Monroe County, entered an order directing respondent to deposit into his trust account certain legal fees pending the resolution of a dispute between respondent and another law firm regarding his entitlement to the fees. The Referee further found that
10 respondent thereafter deposited into his trust account only a portion of the fees necessary to comply with the order of the court. With respect to a separate arbitration proceeding in which respondent was a party, the Referee found that, in June 2006, the arbitrator struck respondent s pleading based upon his aggravated and total resistance to certain subpoenas seeking the production of documents possessed by respondent and his law firm. The Referee further found that Supreme Court, Albany County, thereafter confirmed the arbitrator s determination and the sanction imposed. In addition to respondent s conduct related to the above matters, the Referee found that, from March 2004 through January 2006, respondent signed certain authorizations for the release of records on behalf of 11 separate clients in personal injury matters, falsely notarized the signatures and sent the authorizations to various healthcare facilities and municipal agencies to obtain information regarding his clients. With respect to the alleged trust account violations, the Referee found that, from May 2005 through December 2008, respondent maintained personal funds in his trust account, disbursed funds from his trust account for matters unrelated to client matters, failed to keep adequate records regarding the transactions in his trust account and failed to maintain a balance in the account sufficient to satisfy his obligations to his clients. In addition, the Referee found that, from November 2007 through December 2008, respondent issued three checks drawn on his trust account that were rejected for insufficient funds. Finally, the Referee found that, from August 2002 through October 2004, respondent as a matter of course failed to disclose to his clients in certain personal injury matters the existence of a fee-sharing joint venture between his law firm and two other law firms. We confirm the findings of fact made by the Referee and conclude that respondent has violated the following former Disciplinary Rules of the Code of Professional Responsibility: DR (a) (3) (22 NYCRR [a] ) - engaging in illegal conduct that adversely reflects on his honesty, trustworthiness or fitness as a lawyer; DR (a) (4) (22 NYCRR [a] ) - engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; DR (a) (5) (22 NYCRR [a] ) - engaging in conduct that is prejudicial to the administration of justice; DR (a) (7) (22 NYCRR
11 [a] ) - engaging in conduct that adversely reflects on his fitness as a lawyer; DR (a) (1) (22 NYCRR [a] ) - dividing a fee for legal services with another lawyer who is not a partner in or associate of the lawyer s law firm without client consent after full disclosure to the client that a division of fees will be made; DR (a) (4) (22 NYCRR [a] ) - knowingly using perjured testimony or false evidence in the representation of a client;dr (a) (5) (22 NYCRR [a] ) - knowingly making a false statement of law or fact in the representation of a client; DR (a) (8) (22 NYCRR [a] ) - knowingly engaging in illegal conduct or conduct contrary to a disciplinary rule in the representation of a client; DR (a) (22 NYCRR [a]) - misappropriating client funds and commingling client funds with personal funds;dr (c) (3) (22 NYCRR [c] ) - failing to maintain complete records of all funds, securities and other properties of a client or third person coming into his possession and to render appropriate accounts to the client or third person regarding them; DR (d) (1) (22 NYCRR [d] ) - failing to maintain required records of bank accounts; DR (d) (2) (22 NYCRR [d] ) - failing to maintain a record for special accounts, showing the source of all funds deposited in such accounts, the names of all persons for whom the funds are or were held, the amount of such funds, the description and amounts, and the names of all persons to whom such funds were disbursed; and DR (j) (22 NYCRR [j]) - failing to produce required bookkeeping records in response to a notice issued by the Grievance Committee. We have considered, in determining an appropriate sanction, the matters submitted by respondent in mitigation, including that his failure to comply with the court orders and his violation of the disciplinary rules relating to his trust account were the result of inattentiveness rather than venal intent, and that he has obtained the assistance of a certified public accountant to monitor his trust account. We have further considered, with respect to the falsely notarized authorizations, that respondent did not engage in the misconduct with the intent to harm his clients or personally to benefit from the misconduct. Finally, we have considered the previously unblemished record of respondent and his expression of extreme remorse. Accordingly, after consideration of all of the factors in this matter, we conclude that respondent should be
12 censured. PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS AND GORSKI, JJ. (Filed Jan. 13, 2012.)
13 MATTER OF BILLIE D. HOLLIDAY, AN ATTORNEY, RESPONDENT. GRIEVANCE COMMITTEE OF THE SEVENTH JUDICIAL DISTRICT, PETITIONER. -- Order of censure entered. Per Curiam Opinion: Respondent was admitted to the practice of law by this Court on June 27, 1985, and maintains an office for the practice of law in Rochester. The Grievance Committee filed a petition charging respondent with acts of professional misconduct arising from his failure to pay personal income tax and to file personal income tax returns for a 16-year period. Respondent filed an answer admitting the material allegations of the petition and thereafter appeared before this Court and submitted matters in mitigation. Respondent admitted that, from 1994 through 2009, he failed to file state and federal tax returns and failed to pay the related taxes. He further admitted that, as of the date of the petition, he had failed to pay any of the outstanding tax liabilities. We conclude that respondent has violated the following former Disciplinary Rules of the Code of Professional Responsibility: DR (a) (3) (22 NYCRR [a] ) - engaging in illegal conduct that adversely reflects on his honesty, trustworthiness or fitness as a lawyer; and DR (a) (7) (22 NYCRR [a] ) - engaging in conduct that adversely reflects on his fitness as a lawyer. We have considered, in determining an appropriate sanction, respondent s submissions in mitigation, including that he has now filed all state and federal tax returns and is in the process of arranging with the state and federal tax authorities for the payment of the outstanding taxes. Additionally, we have considered respondent s submission that he suffered from various health problems and financial difficulties during the relevant time period, which contributed to his failure to file the tax returns and to pay the related taxes. Finally, we have considered respondent s expression of remorse. Accordingly, after consideration of all of the factors in this matter, we conclude that respondent should be censured. PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, AND MARTOCHE, JJ. (Filed Feb. 10, 2012.)
15 MATTER OF MELISSA ANN MAHLER, A SUSPENDED ATTORNEY, RESPONDENT. GRIEVANCE COMMITTEE OF THE SEVENTH JUDICIAL DISTRICT, PETITIONER. -- Order of suspension entered. Per Curiam Opinion: Respondent was admitted to the practice of law by this Court on July 13, On October 11, 2009, she was convicted upon her plea of guilty in the United States District Court for the District of Columbia (District Court) of violating 18 USC 1001, a federal felony. Respondent admitted that, during a telephone interview in 2004 with officials from the Securities and Exchange Commission, she made false statements regarding a securities transaction in her personal brokerage account. This Court determined that a violation of 18 USC 1001 is a serious crime within the meaning of Judiciary Law 90 (4) (d) and, on September 17, 2010, entered an order suspending respondent and directing her to show cause why a final order of discipline should not be entered (Matter of Mahler, 77 AD3d 1455). On November 3, 2011, respondent was sentenced in District Court to a two-year term of probation and was ordered to pay a fine in the amount of $2,500 and to perform 100 hours of community service. On February 28, 2012, respondent appeared before this Court and submitted matters in mitigation. We have considered the matters submitted by respondent in mitigation, including her expression of remorse and the numerous letters of support submitted by individuals attesting to her good character and skill as an attorney. We have also considered, however, that respondent s misconduct involved deceit and appears to have been committed for personal gain. Accordingly, after consideration of all of the factors in this matter, we conclude that respondent should be suspended for two years, effective November 3, 2011, or until the termination of her federal term of probation, whichever period is longer, and until further order of the Court. PRESENT: SMITH, J.P., FAHEY, LINDLEY, AND SCONIERS, JJ. (Filed Mar. 16, 2012.)
16 MATTER OF STEFAN D. BERG, AN ATTORNEY, RESPONDENT. GRIEVANCE COMMITTEE OF THE FIFTH JUDICIAL DISTRICT, PETITIONER. -- Order of suspension entered. Per Curiam Opinion: Respondent was admitted to the practice of law by this Court on June 25, 1992, and maintains an office in Syracuse. The Grievance Committee filed a petition charging respondent with misconduct including representing clients with differing interests and improperly contacting a party who was represented by counsel. Respondent filed an answer admitting the material allegations of the petition and he thereafter appeared before this Court and submitted matters in mitigation. Respondent admitted that, in June 2011, he was retained by a client who was the subject of criminal charges arising from a domestic dispute. The alleged victim also faced criminal charges in relation to the incident and was represented by separate counsel. In addition to the criminal charges, temporary orders of protection had been issued in favor of both respondent s client and the alleged victim as against the other party. After being retained, respondent simultaneously met with his client and the alleged victim at his office, at which time they informed respondent that they wanted to live together despite the orders of protection. Respondent advised the alleged victim to consult with her attorney, and respondent thereafter contacted that attorney seeking to resolve the matter. From July through September 2011, despite knowing that the alleged victim was represented by separate counsel, respondent on several occasions without notice to the alleged victim s counsel spoke directly with her regarding the substance of the pending criminal matters and, on at least two occasions, simultaneously met with his client and the alleged victim to discuss the matters. In September 2011, respondent met with both parties at his office and drafted an affidavit for each of them wherein each stated that they were living together and intended to marry. After the parties executed the affidavits, respondent forwarded them to the prosecutor in an effort to resolve the criminal matters. The prosecutor raised to the judge presiding over the matters the issue of respondent s conflict of interest and, after the parties appeared before the judge, respondent withdrew from representing the alleged victim.
17 We conclude that respondent has violated the following Rules of Professional Conduct: rule 1.1 (b) (22 NYCRR ) handling a legal matter that he knows or should know that he is not competent to handle; rule 1.7 (a) (1) (22 NYCRR ) representing multiple clients with differing interests without disclosing the implications of the simultaneous representation and obtaining from each affected client informed consent to the representation, confirmed in writing; rule 4.2 (a) (22 NYCRR ) communicating during the course of the representation of a client about the subject of the representation with a party the lawyer knows to be represented by a lawyer in the matter; and rule 8.4 (h) (22 NYCRR ) engaging in conduct that adversely reflects on his fitness as a lawyer. We have considered, in determining an appropriate sanction, respondent s submissions in mitigation, including his statements that he has engaged a mentor attorney to assist him in monitoring his law practice and that he has sought treatment with a psychologist in an effort to avoid future misconduct. We have additionally considered, however, respondent s extensive disciplinary history, which includes a letter of admonition, five letters of caution and a prior suspension for serious misconduct (Matter of Berg, 54 AD3d 66). We have further considered respondent s prior representations to this Court, made in response to previous allegations of misconduct, that he intended to avoid future misconduct by engaging a mentor attorney to assist him in monitoring his practice and by seeking mental health treatment. Accordingly, after consideration of all of the factors in this matter, we conclude that respondent should be suspended from the practice of law for a period of six months and until further order of the Court. PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, AND MARTOCHE, JJ. (Filed Apr. 20, 2012)
18 MATTER OF DAN M. WALTERS, AN ATTORNEY, RESPONDENT. GRIEVANCE COMMITTEE OF THE SEVENTH JUDICIAL DISTRICT, PETITIONER. -- Order of censure entered. Per Curiam Opinion: Respondent was admitted to the practice of law by this Court on February 16, 1971, and maintains an office for the practice of law in Rochester. The Grievance Committee filed a petition charging respondent with acts of professional misconduct including making false statements of fact to a tribunal. Respondent filed an answer admitting the material allegations of the petition and he thereafter appeared before this Court and submitted matters in mitigation. Respondent admits that, in 2008, he agreed to represent a party in an action for divorce and, at that time, his client resided in a home that was owned by the client s spouse and was subject to a mortgage that had been obtained by the spouse from a bank. In April 2011, after the divorce action was resolved, the bank commenced a foreclosure action on the mortgage, serving the foreclosure complaint on the client s former spouse as a named defendant and further serving respondent s client as an unknown tenant or occupant of the premises. Respondent admits that he thereafter contested the foreclosure action purportedly on behalf of his client s former spouse, despite the fact that respondent had not discussed the matter with the former spouse and did not have authority to represent the former spouse. Respondent further admits that he served an answer and filed two affidavits in the action wherein he falsely stated that he represented his client s former spouse, and further failed to disclose the true identity of his client. In addition, respondent admits that, during the course of the foreclosure action, he sent a letter to his client s former spouse, the bank and counsel to the bank, proposing that his true client purchase the premises, despite the fact that he had not obtained prior approval from counsel to the bank to contact the bank directly. We conclude that respondent has violated the following Rules of Professional Conduct: rule 3.3 (a) (1) (22 NYCRR ) - knowingly making a false statement of fact or law to a tribunal and failing to correct a false statement of material fact or law previously made to the tribunal; rule 3.3 (e) (22 NYCRR ) - failing to disclose the identity of his client in presenting a matter to a tribunal;
19 rule 4.2 (a) (22 NYCRR ) - communicating during the course of the representation of a client about the subject of the representation with a party the lawyer knows to be represented by a lawyer in the matter; rule 8.4 (c) (22 NYCRR ) - engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; rule 8.4 (d) (22 NYCRR ) - engaging in conduct that is prejudicial to the administration of justice; and rule 8.4 (h) (22 NYCRR ) - engaging in conduct that adversely reflects on his fitness as a lawyer. We have considered, in determining an appropriate sanction, respondent s submissions in mitigation, including that he derived no personal benefit from the misconduct. We have further considered his expression of remorse and the numerous letters of support submitted by individuals attesting to his good character and longtime reputation for honesty. Accordingly, after consideration of all of the factors in this matter, we conclude that respondent should be censured. PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, AND MARTOCHE, JJ. (Filed Apr. 20, 2012.)
20 MATTER OF P. DAVID SOARES, AN ATTORNEY, RESPONDENT. GRIEVANCE COMMITTEE OF THE SEVENTH JUDICIAL DISTRICT, PETITIONER. -- Order of censure entered. Per Curiam Opinion: Respondent was admitted to the practice of law by the Appellate Division, Third Department on January 25, 2000, and currently serves as the District Attorney for Albany County. A petition was filed in the Third Department alleging that respondent engaged in conduct prejudicial to the administration of justice when his office released a public statement criticizing the decision of a judge in a pending criminal matter. Respondent filed an answer admitting the material allegations of the petition and asserting certain legal defenses. The matter was subsequently transferred to this Court by order of the Third Department, entered May 20, Following that transfer, the parties were afforded an opportunity to file with this Court papers addressing any outstanding legal issues, and respondent thereafter appeared before this Court and submitted matters in mitigation. Respondent admits that, in 2006, his office commenced an investigation of the alleged illegal sale of prescription medicine to Albany County residents by certain individuals who were operating a pharmacy located in Florida. With respect to that matter, a series of five indictments was handed down by an Albany County grand jury. In September 2008, after the fourth indictment was dismissed and respondent s office was granted leave to re-present the dismissed indictment, certain of the defendants in the criminal proceeding filed in Florida a civil action against respondent and a member of his staff, as well as the Albany County District Attorney s Office, asserting claims for unlawful arrest, unlawful conspiracy, defamation and intentional infliction of emotional distress. The civil claims were based on alleged wrongful conduct committed by respondent and his office in prosecuting the Albany County criminal matter. In June 2010, the federal district court presiding over the Florida civil action determined a motion for summary judgment filed by respondent and the other Albany County defendants,denying the motion with respect to virtually all of the claims pending against them in that action. On November 15, 2010, Albany County Court (Herrick, J.) dismissed the fifth indictment in the criminal proceeding and disqualified respondent s office from further