Lawyer And Firm Censured For Collection Case Misconduct
A law firm partner and the firm itself have been publicly censured by the New York Appellate Division for the Second Judicial Department.
The story
Cohen & Slamowitz, LLP (hereinafter C & S), is a law firm engaged in the practice of law with offices at 199 Crossways Park Drive, P.O. Box 9004, Woodbury, New York 11797-9004. David A. Cohen (hereinafter the individual respondent) is the senior partner of C & S. As senior partner, the individual respondent oversaw the legal activities of C & S’s collection practice during the relevant period of time, and indirectly supervised approximately three hundred employees, including attorneys, paralegals, collection staff, and support staff. In April 2002, the individual respondent had an informal discussion with Grievance Committee counsel, and was advised to “exercise caution, try to be careful and supervise [his] staff adequately, make sure [he had] appropriate and reasonable procedures in place, and that [he monitored those] procedures.” The individual respondent also was advised that he, his partner Mitchell G. Slamowitz, and the attorneys employed by C & S were responsible for the conduct of their staff.
The court found ethical misconduct in several matters where the firm pursued the wrong debtor
The individual respondent, David A. Cohen, did not testify. Rather, the respondents relied primarily upon the testimony of an expert witness, Ronald M. Abramson, Esq. A creditors’ attorney and member of the Grievance Commission of Maryland, Abramson testified that the respondents’ conduct was both reasonable and proper in the aforementioned matters. According to Abramson, the respondents could not assume that what was being told to them by the debtors was correct, and that the onus was not upon the respondents to establish the validity of the debtors’ claims absent written notice from the debtors, within 30 days, following their presumed receipt of a validation letter pursuant to the Fair Debt Collection Practices Act (15 USC § 1692k; hereinafter FDCPA). Abramson testified, further, that in the absence of FDCPA violations, there could be no ethical violations. However, on cross-examination, Abramson conceded that there did not have to be a violation of the law for there to be professional misconduct.
Notwithstanding Abramson’s testimony, we find that the respondents’ conduct in the aforementioned matters was neither reasonable nor proper, particularly in the Mujtaba, Quader, and Kerschhagel matters, wherein the respondents had information at their disposal that they were pursuing the wrong debtor; continued to pursue a collection matter even after the matter was concluded; and restrained a debtor’s bank account despite improper service and knowledge that the debt had previously been satisfied. Based upon their unreasonable and improper conduct in multiple debt collection matters, we find that the respondents engaged in a pattern and practice of failing to act appropriately, and that this pattern and practice was prejudicial to the administration of justice, in violation former Code of Professional Responsibility DR 1-102(A)(5) (22 NYCRR 1200[a][5]; cf. Matter of Sokoloff, 95 AD3d 254).
As to sanction
In determining an appropriate measure of discipline to impose, we note that the respondents have a voluminous history of similar misconduct. On or about June 29, 2012, the individual respondent received a Letter of Reprimand emanating from complaints filed between 2004 and 2008, which were similar in nature to those presently before the Court. Additionally, from 1996 through 2005, a total of seven Letters of Caution, two Admonitions, and three Personally Delivered Admonitions, were issued to either the individual respondent or C & S, and they all emanated from complaints similar to those involved in the instant petition, and arose from conduct including the failure to conduct adequate investigations prior to commencing debt collections or restraining bank accounts, the failure to adequately supervise non-legal staff, and the failure to adequately address inquiries and complaints from alleged debtors.
In mitigation, C & S’s managing attorney, Leandre John, testified that the respondents have undertaken efforts to reform their collection practices by adding a compliance department and other safeguards to prevent future misconduct. John testified that he presently oversees C & S’s legal procedures, supervises the attorneys and support staff in the legal department, and assists the individual respondent and his partner in addressing legal issues. He testified, further, that the respondents’ compliance department reviews complaints from debtors and alleged debtors, as well as issues between managers and staff. The respondents’ expert witness, Abramson, testified that staff training is better now than it was prior to 2008. Moreover, he was impressed by the respondents’ compliance department.
(Mike Frisch)