The Nanny’s Spouse Was A Suspended Lawyer

The New York Appellate Division for the First Judicial Department has imposed a one-year suspension of an attorney who assisted in authorized practice and falsely denied the misconduct to the Departmental Committee:

By way of background, respondent graduated law school in 1978 and has been a non-practicing attorney for most of his career. An unrelated incident in 1998 led to a forced but honorable discharge from the Army. That incident also resulted in an admonition in 1999. From 2007 through 2010, while employed at the EPA, respondent performed per diem work, in immigration law, for a suspended attorney (SA). The present charges stem from respondent’s association with SA. Although respondent was aware of the suspension from 2007, he claimed that he did not see the actual Appellate Division decision until he was deposed by the DDC in January 2012.

Respondent’s relationship with SA developed as a result of his employment of SA’s wife as a nanny for his young daughter. Respondent explained that he and his then wife (who suffered from a serious chronic illness) were both employed full time and that SA’s wife provided reliable childcare. Respondent became aware that SA and his wife were experiencing financial difficulty and respondent felt that by assisting SA in immigration matters he could help alleviate the couples’ financial strain. This would, in turn, maintain stability in his own family by SA’s wife continuing as his nanny. In addition, respondent was anticipating retiring from federal service in the near future and thought that by working for SA he could learn immigration law (an area in which he had no experience) and then develop his own immigration practice.

Respondent did not initially believe that assisting SA in immigration matters constituted aiding the unauthorized practice of law, and only became aware of this after he became the subject of a DDC investigation. SA was ineligible to practice before the United States Citizenship and Immigration Service (USCIS) and the Immigration Court because he was required to be an attorney in good standing “of the bar of the highest court of any State…and is not under any order suspending…or otherwise restricting him in the practice of law” (8 CFR 1001.1[f]; 1292.1[a][1]).

Respondent assisted SA’s office in Astoria, Queens. The office and all client files belonged to SA. Respondent was paid $400-500 per day for immigration-related appearances. Respondent would meet with SA the day prior to (or, in some cases, the day of) a proceeding and SA would instruct him as to what he must do at the proceeding. Respondent would not meet with the client until the actual day of the proceeding. Due to his lack of experience in immigration law, respondent allowed SA to make all legal (and non legal) decisions with respect to the cases. In addition, all letters and documents were prepared by SA. Respondent never executed retainer agreements with the clients, nor did he ever receive any payments from the clients. Respondent estimated that he appeared at 10-12 immigration hearings (before the USCIS) for SA during the three years.

As to sanction:

Sanction determination in cases where attorneys have aided the unauthorized practice of law is very fact dependent. Here, respondent’s misconduct is not as extensive as those matters in which disbarment was imposed, however, the surrounding circumstances make his case distinguishable from those in which a brief suspension of three to six months was imposed. Specifically, respondent was aware from the outset that SA was a suspended attorney. Notwithstanding this knowledge, he never bothered to review this Court’s decision suspending SA; there is no evidence that he consulted with ethics counsel or performed any legal research of his own regarding the ethical issues raised by his arrangement with SA; nor is there any indication that he reviewed the federal regulations pertaining to the eligibility to practice immigration law.

Respondent’s conduct was reckless and irresponsible and warrants suspension. Furthermore, respondent’s intentional misrepresentation to the DDC in his answer to the complaint is a significant aggravating factor which only adds to the case for suspension…

(Mike Frisch)