Litigation Misconduct Draws One Year Suspension

The New Jersey Supreme Court has imposed a one-year suspension as reciprocal discipline in an interesting litigation-misconduct matter.

The misconduct involved an associate’s attorney handling of an employment discrimination matter against the client’s former employer (OMD). The associate was supervised by partners of his law firm.

OMD had sought information about the client’s efforts to mitigate damages through, among other things, obtaining new employment. Responsive documents were provided by the firm.

The firm retained an economist to assess damages. The expert prepared an analysis based on the assumption that the client would be unemployed through the end of 2010.

Prior to service of the expert’s report, the client got two job offers. She accepted a job with Kraft that paid her more than she made at OMD. She advised the attorney informed about her employment situation, who in turn told his supervisor.

The firm then received and sent to opposing counsel the expert report, asking for a $350,000 settlement.

Then client was deposed a month later and lied about the situation. The attorney was aware of the false testimony but did not move to correct it

Negotiations continued until OMD learned about the client’s new job.

The Disciplinary Review Board

 OMD’s counsel moved for sanctions and dismissal. [Supervising attorney] Gilly and another partner from the firm were present at the May 2011 oral argument on the motion. Respondent was not present. The judge imposed a sanction $2,500 against [client] Fryer and $15,000 against the firm, “based on false testimony by Ms. Fryer at her deposition” and respondent and Gilly’s efforts “to conceal Ms. Fryer’s new employment and to leverage a false expert report in order to extract a favorable settlement.” The judge declined to dismiss the case against OMD at the time. Respondent was asked to resign from the firm on May 31, 2011.

The court imposed the same sanction as originally ordered by the New York Appellate Division for the First Judicial Department.

LAW360 reports that the partner was suspended in the New York Southern District and had sued the law firm.  (Mike Frisch)