Hello everyone and welcome to this Ethics Alert blog which will discuss the recent New York disciplinary opinion which imposed a one (1) year suspension on a lawyer who, along with other misconduct, entered into an agreement with a client to assist in a malpractice action against his own law firm. The opinion is Matter of Novins, 2014 NY Slip Op 03465 (NY Appellate First Division 5/13/14) and the disciplinary opinion is here: https://www.nycourts.gov/reporter/3dseries/2014/2014_03465.htm
According to the opinion, the lawyer was hired by a New York law firm in 2006 and was assigned to work on a personal injury action filed in 1994 against the City of New York and an off duty New York City police officer on behalf of another off duty New York City police officer (the client), who had been shot and wounded in a bar by that off-duty police officer. Although the lawyer’s firm served the City with a summons and complaint, it never served the defendant police officer. In 2007, the City was granted summary judgment in the personal injury action on the ground that it had not negligently supervised the shooting police officer because it did not have notice of his dangerous propensities. The summary judgment was affirmed in 2008.
In January 2008, while the motion for leave to appeal was pending, the lawyer and the client met in a restaurant and signed a “Personal Services Agreement” under which the client agreed to “give” the lawyer 45% of any net recovery he received related to the shooting incident. This agreement included the personal injury action and a legal malpractice claim against the lawyer’s firm for “negligently failing to timely serve the defendant police officer, for neglecting to work on (the) case over the many years, for failing to take the deposition of the defendant police officer, for having failed to obtain a copy of the defendant police officer’s Personnel File in a timely manner and for failing to bring a Motion … for spoliation of this key evidence.” The agreement was drafted by the lawyer; however, it did not specifically state what services that the lawyer would provide. The lawyer acknowledged during the disciplinary proceedings that he agreed to serve as a witness for the client in the malpractice action against his employer.
During the disciplinary proceedings, the lawyer stated that the client brought up the subject of additional compensation and that the 45% fee was to compensate him for his extraordinary efforts in the personal injury action and for his willingness to assist the client in pursuing the malpractice claim, which would require him to leave his law firm (the putative legal malpractice defendant). The client denied this and stated that the lawyer produced the agreement at the meeting and asked him to sign it, telling him that he had notes and documents that would prove the legal malpractice claim. The lawyer provided the client with a list of legal malpractice attorneys and concealed the agreement from his law firm.
In May 2008 (while the lawyer was still employed with the law firm), a malpractice action was filed against the lawyer’s firm and principals and “(b)etween February and March 2009, (the lawyer) left a series of voice-mail messages for (the client) asking him to call him back. On April 28, 2009, (the lawyer) left (the client) a message in which he referred to risking his neck by putting certain notes back into the personal injury action file which (the client) would need for the malpractice action. In May 2009, respondent left a message stating that he would be leaving the (law) firm in 30 days and would be able to prove the malpractice and coverup.”
On May 28, 2009, the lawyer left a message with the client complaining that he had called him about 30 times but received only one call back. The lawyer falsely stated that he had left his law firm and said that he considered the agreement to be in full force and effect. He also threatened to throw away all the evidence in his possession unless the client called him back. Ten minutes later, the lawyer left another message stating he would take appropriate action to enforce the agreement as soon as he left his firm. The lawyer admitted during the disciplinary proceedings that the purpose of the calls was to compel the client to honor the agreement or at least renegotiate its terms so that he could have a financial recovery for the malpractice claim.
In April or May 2010, during the course of discovery, the lawyer’s law firm learned of the secret agreement with the client, but did not fire the lawyer. On or about August 17, 2010, the law firm learned of the messages that the lawyer left on the client’s voice mail and the lawyer was deposed in the malpractice action on August 20, 2010 and retracted his allegations of malpractice against the law firm.
The client filed a disciplinary complaint against the lawyer on August 26, 2010. The law firm fired the lawyer on August 31, 2010 and filed a disciplinary complaint against him on September 7, 2010. In 2012, the New York Disciplinary Committee brought six charges against the lawyer and a disciplinary panel conducted evidentiary proceedings.
The disciplinary panel found that the lawyer charged an excessive and unreasonable fee, engaged in conduct which reflected adversely on his fitness as a lawyer, acquiesced to the payment of compensation to himself as a witness which testimony was contingent on the outcome of a case, violated his duty of loyalty to both the client and his law firm by attempting to charge a client for information that both he and the firm were ethically obligated to provide and by concealing the agreement from his employer, and threatening to destroy evidence that was apparently essential to the client’s malpractice claim. The panel recommend that the lawyer be suspended from practice for one (1) year.
After considering mitigating and aggravating factors and relevant case law, the opinion granted the Disciplinary Committee’s Motion to approve the hearing panel’s recommendation that the lawyer be found guilty of all counts and suspended him from the practice of law for one (1) year.
Bottom line: This opinion tells a quite sordid tale of duplicity, false statements, disloyalty, attempted coercion, and greed as well as just plain dumb actions by a lawyer who was unbelievably disloyal to both his law firm and to a client. Sometimes you think you have seen it all…
Let’s be careful out there.
Disclaimer: this Ethics Alert blog is not an advertisement and does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
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Clearwater, Florida 33759
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