Bad Deed

The New York Appellate Division for the Second Judicial Department imposed a five-year suspension of an attorney, rejecting a referee’s conclusion that he had acted with subjective good faith and should not be disciplined in the following actions:

On May 20, 2002, the respondent visited the psychiatric unit ofColumbia Presbyterian Hospital where his cousin, Rubin J., was apatient. The respondent knew of Rubin’s recent history of psychiatrichospitalizations. Reynaldo Hylton, a notary, accompanied therespondent. The respondent also brought a deed and other legaldocuments that he had prepared. The respondent had Rubin execute thedeed, conveying Rubin’s house in Brooklyn to the respondent and hiswife, without any consideration. Rubin continued to be liable as amortgagor in connection with a mortgage loan that financed his purchaseof the house.

The respondent recorded the deed the next day and ignoredimmediate requests by Rubin and his attorneys to reconvey the propertyon the ground that the conveyance was a nullity by virtue of hishospitalization.

The court noted that the conveyance had been set aside in litigation and concluded:

The respondent’s defense is based on his own nonexpert diagnosis,and that of his hand-picked notary, that Rubin was of sound mind andwas competent to cede ownership of his property without considerationand without the advice of an independent attorney. The respondent’scounsel posits a subjective standard, based on what was purportedly inthe respondent’s mind at the time he had Jordan execute the deed,notwithstanding the objective facts. That standard was adopted by theSpecial Referee, and factored prominently in his assessment of thewitnesses’ credibility.

The findings of the SpecialReferee, however, are contradicted by some of the respondent’s ownwitnesses, and find no support in the hospital records. Significantly,the respondent’s misconduct was not limited to his actions of May 20,2002. Despite numerous opportunities to return the deed, therespondent’s actions in moving into the residence, collecting rentsfrom tenants while Rubin continued to repay the mortgage loan, andrefusing to vacate the premises until a City marshal’s intervention wassought, demonstrate an ongoing intent to deprive Rubin of his property.

The respondent’s position disregards the protection afforded bythe New York State Department of Mental Hygiene, the advice of familymembers, the rules of professional conduct, and rulings by both theSupreme Court and the Appellate Division. Under the circumstances, wefind that the Special Referee erred in failing to sustain the charge.

The attorney had been charged with a single count of violating the prohibition against conduct involving dishonesty, fraud, deceit or misrepresentation. The present New York version of the rule, New York DR 1-102(a)(4), contains the language “which adversely reflects on fitness as a lawyer.” Model Rule 8.4(c) does not have that qualification, although no sane bar counsel prosecutes such a charge if the dishonest conduct does not raise such a question.  (Mike Frisch)