Well-Intentioned Neglect Results In Suspension

The New York Appellate Division for the First Judicial Department resolved a disagreement over the appropriate sanction by imposing a three month suspension in a matter involving two instances of client neglect. A hearing panel had recommended a six month suspension. On review, a referee favored a public censure. As one might suppose, the attorney sought a private reprimand rather than censure; disciplinary counsel supported the six months. The court here split the difference.

The court’s view of the misconduct:

As found by the Referee and conceded by the Hearing Panel, the evidence

“clearly indicated that the respondent, although taking on matters that he was not prepared to handle, sought to assist members of his community who did not have access to appropriate legal assistance and/or did not have the funds to procure such assistance. His motives and intentions were clearly those of a person who sought to do good deeds. In many cases he took on matters without compensation, hoping that eventually he would be able to resolve the matters to the benefit of his clients. However, he often lacked the expertise and finances to attain these goals.”

The conclusion, endorsed by the Hearing Panel, is that respondent’s neglect of the client matters was inadvertent and that misuse of his attorney escrow account was the result of confusion with his personal account, which is maintained at the same bank and bears an account number ending with the same two digits.

As to sanction:

Respondent admits that he finds being a solo practitioner to be overwhelming and should seek employment with a law firm to avoid similar problems in future. He adds that he suffers from seasonal depression and has received therapy, which he has found to be helpful. Although respondent has produced no expert medical evidence to establish a causal connection between this condition and his neglect, the Committee concludes that his failure to exercise suitable diligence is the result of taking on more matters than he could handle, including many cases resulting in little or no payment for his services.

While public censure is a suitable sanction for neglect of client matters if an attorney has no history of misconduct warranting disciplinary action, where the attorney has previously neglected legal matters and received admonitions, a period of suspension is appropriate. In view of respondent’s extensive pro bono work, service to his community and the lack of venal intent, a period of suspension of three months consitutes the appropriate sanction.

(Mike Frisch)