Cover Up Worse Than Crime

A recent decision from the New York Appellate Division for the Second Judicial Department demonstrates the worst possible way to deal with an instance of neglect. The charges and disposition are described by the court:

In or about June 2002, the respondent, as an associate with thelaw firm of Weinberg & Kert LLP, prepared a summons and complainton behalf of a client, Howard Kaufman, which was signed solely by Mr.Kaufman, who was ostensibly proceeding pro se. In or about July 2002,the respondent caused the summons and complaint to be filed in theSupreme Court, Queens County, and served on the defendants on Mr.Kaufman’s behalf. 

In or about October 2002, Mr.Kaufman advised the law firm that the defendants had not answered thesummons and complaint. The law firm directed the respondent to prepare,serve, and file motion papers on Mr. Kaufman’s behalf seeking toadjudicate the defendants in default. In or about November 2002, therespondent prepared the motion papers, including Mr. Kaufman’saffidavit, but failed to have those motion papers filed and served.

Charge two alleges that the respondent engaged in conductinvolving dishonesty, fraud, deceit, or misrepresentation by creatingfictitious court documents and providing them to a client for thepurpose of misleading the client about the status and progress of hislawsuit, in violation of Code of Professional Responsibility DR1-102(a)(4).

In or about May 2003, Mr. Kaufman contacted the law firm toinquire about the status of his lawsuit. The respondent thereafterbegan creating fictitious court documents, which he provided to Mr.Kaufman over a period of time, for the purpose of misleading him as tothe status and progress of his lawsuit. The fictitious court documentswhich respondent created and provided to Mr. Kaufman included (a) ashort form order dated April 23, 2003, issued and signed by theHonorable M. Ritholtz, granting Mr. Kaufman’s motion for a defaultjudgment and referring the issue of damages to an inquest, (b) thedefendant’s order to show cause, signed by the Honorable M. Ritholtz onSeptember 12, 2003, seeking to set aside the default judgment,accompanied by defense counsel’s signed affirmation and the defendant’ssigned, but not notarized, affidavit, (c) the respondent’s affirmationin opposition to the defendant’s order to show cause, dated October 8,2003, (d) a preliminary conference stipulation and order dated March17, 2004, signed by the respondent and defense counsel, and (e) anotice of compliance/settlement conference scheduled for October 21,2004, before the Honorable M. Ritholtz.

Charge three alleges that the respondent engaged in conductthat adversely reflects on his fitness as a lawyer by creatingfictitious court documents and providing same to a client for thepurpose of misleading the client about the status and progress of hislawsuit, in violation of Code of Professional Responsibiilty DR1-102(a)(7), based on the factualspecifications of charge two.

Based on the respondent’s admissions to the factual allegationsin the three charges and the evidence adduced at the hearing, theSpecial Referee erred in failing to sustain charge one. Accordingly,the Grievance Committee’s motion to confirm in part and disaffirm inpart the report of the Special Referee should be granted, with theresult that all three charges of the petition are sustained.

In determining an appropriate measure of discipline to impose,the Grievance Committee notes that the respondent has no priordisciplinary history.

In mitigation, the respondent asked the Court to consider thetreatment he underwent to deal with his anxiety disorder, his youth andinexperience, his efforts to address the issues and to voluntarilyremove himself from the practice of law until such time as remedialmeasures could assure the non-recurrence of similar behavior, and theabsence of financial harm to the client, to whom full restitution wasmade. The client demanded, and was paid, $7,500 to resolve his claimsagainst the law firm. The respondent paid $6,500 of that sum. In therespondent’s view, the restitution paid far exceeded any anticipatedaward by the courts.

(Mike Frisch)