Course Correction
Another censure of an attorney by the New York Appellate Division for the Fourth Judicial Department; another “non-venal” ethics violations.
Respondent admits that, in 2013, he was retained by a client to defend an action for divorce that had been filed by the client’s wife and, after respondent indicated to opposing counsel that his client intended to commence a bankruptcy proceeding seeking relief from certain marital debts, respondent and opposing counsel agreed that respondent would file a joint bankruptcy petition on behalf of both parties to the divorce action. Respondent admits that he thereafter arranged for his paralegal to obtain from the wife certain information for the joint bankruptcy petition, including proof that the wife had completed a required credit counseling course. Respondent admits that the paralegal erroneously told the wife that she was not required to complete the credit counseling course and, on May 27, 2014, respondent filed the bankruptcy petition containing a false certification that the wife had completed the course. Respondent further admits that, although the rules of the Bankruptcy Court required that the parties approve and file certain schedules in support of the bankruptcy petition, the wife did not review the schedules before they were filed and, in June 2014, respondent filed them together with a false certification that they had been reviewed and approved by the wife.
Respondent admits that, during a hearing before the bankruptcy trustee in late June 2014, the wife admitted that, although she had approved the petition, she had not completed the required credit counseling course and had not approved the supporting schedules. In addition, the husband admitted that a schedule listing his assets omitted that he was entitled to an anticipated payment in the amount of $50,000 pursuant to an annuity agreement that had been established in settlement of a prior personal injury claim. The testimony of the parties during the bankruptcy hearing also established that respondent was concurrently representing the husband in the divorce action, after which the trustee adjourned the hearing. Respondent admits that he did not thereafter seek to file corrected documents in the bankruptcy proceeding in light of the hearing testimony of the parties that conflicted with the information and statements contained in the documents that respondent had previously filed with the Bankruptcy Court.
On July 17, 2014, the bankruptcy trustee, citing the inaccurate filings and conflict of interest that were revealed during the hearing, moved in Bankruptcy Court for an order removing respondent as counsel to both parties and requiring him to disgorge fees in the amount of $1,000.
Respondent admits that he thereafter filed an amended asset schedule including the husband’s anticipated $50,000 annuity payment and moved to sever the husband’s bankruptcy proceeding from that of the wife. Respondent admits that, following a hearing in Bankruptcy Court on August 6, 2014, the Bankruptcy Court directed respondent to file for both parties to the proceeding a consent to change attorney form and, in October 2014, the Bankruptcy Court entered an order approving a stipulation whereby respondent agreed to disgorge fees in the amount of $1,000 and to pay $500 each to replacement counsel for the parties. The Bankruptcy Court additionally directed respondent to withdraw as counsel for the husband in the divorce action.
There was also misconduct in a separate matter. (Mike Frisch)