Attorney Suspended For Agreeing To Assist In Malpractice Claim Against His Firm

An attorney who entered into an agreement with a client to aid in a suit for malpractice against the firm that employed him was suspended for one year and until further order by the New York Appellate Division for the First Judicial Department.

The attorney was assigned to represent an off-duty police officer shot by another off-duty police officer. The City was granted summary judgment and the individual officer was not served. The summary judgment was affirmed by the First Department.

Then

…while the motion for leave to appeal to the Court of Appeals was pending, respondent and [client] Bernardini met in a restaurant and signed a “Personal Services Agreement” (the Agreement) under which Bernardini agreed to “give” respondent 45% of any net recovery he received relating to the Villarini incident. This included the personal injury action and a legal malpractice claim to be brought against the Ginarte firm “for negligently failing to timely serve … Villarini, …, for neglecting to work on [the] case over the many years, for failing to take the deposition of …Villarini, for having failed to obtain a copy of … Villarini’s …. Personnel File in a timely manner and for failing to bring a Motion …, for spoliation of this key evidence.” Although the Agreement, which respondent drafted, did not specify the services that he was to provide, respondent acknowledges that he agreed to serve as a witness for Bernardini in the malpractice action against his employer.

Respondent contends that Bernardini raised the subject of additional compensation, and that they negotiated the 45% fee to compensate respondent for his extraordinary efforts in the personal injury action and for his willingness to assist Bernardini in pursuing the malpractice claim, which would require him to leave the Ginarte firm. Bernardini asserts that he never expressed a desire to compensate respondent beyond what was in his retainer agreement with the Ginarte firm, and that he and respondent did not have any prior discussions regarding the Agreement. Rather, respondent produced the Agreement at the meeting and asked Bernardini to sign it, telling him that he had notes and documents that would prove the malpractice claim. Respondent later provided Bernardini with a list of malpractice attorneys and concealed the Agreement from the Ginarte firm.

The agreement was discovered in a malpractice action brought by another attorney.

The court

The violations are serious and were motivated by financial gain. Notably, as the majority of the Panel found, there is significant doubt as to whether respondent fully comprehends and accepts responsibility for his misconduct. Among other things, respondent fails to recognize that his advising Bernardini to bring a malpractice case against the Ginarte firm, pursuant to an unethical, dishonest and misrepresentative personal services agreement, reflected adversely on his fitness as a lawyer and involved dishonesty, fraud, deceit or misrepresentation. Nor does respondent recognize that threatening Bernardini with the destruction of evidence in order to obtain some sort of financial recovery for the malpractice claim was conduct adversely reflecting on his fitness as a lawyer and prejudicial to the administration of justice. In this regard, as the majority of the Panel found, respondent’s attempt to minimize his culpability on the ground that he could not or would not have been able to carry out this threat “belies his contention that he has learned from his mistakes.”

Insofar as respondent relies on the medical conditions of family members and financial pressures as mitigating factors, there is ample basis for the Panel’s finding that the conditions he described “seemed too remote in time to be either a causal or mitigating factor with respect to Respondent’s misconduct.” Indeed, the record would support the conclusion respondent conceived the agreement with Bernardini as a means to retaliate against the Ginarte Firm because it cut his annual bonus by 75% after the personal injury action had been dismissed. Insofar as respondent seeks credit for disavowing the agreement, he belatedly did so out of self interest after his relationship with Bernardini had deteriorated and the Agreement was disclosed in the malpractice action.

(Mike Frisch)