An Offer To Refuse (And Record)

An attorney has been suspended for 18 months for his attempt to settle an employment dispute in an unethical manner

In 2004, respondent represented a family friend pro bono, and attempted to negotiate a severance agreement with her former employer. The friend’s former employer, a broker dealer, was at the time the subject of an administrative proceeding before the Securities Exchange Commission. Respondent offered, without the friend’s knowledge, to have her either avoid testifying or falsely testify in the SEC proceeding if her former employer agreed to the proposed severance agreement. The employer’s counsel taped his telephone conversations with respondent and disclosed them during the course of impeaching the employee while she was testifying in the SEC proceeding.

The SEC brought a separate proceeding against respondent on account of the taped conversations. Following a hearing, an SEC ALJ made misconduct findings and suspended respondent from appearing before the SEC for nine months. On appeal, the SEC affirmed the misconduct findings but increased the sanction and permanently barred respondent from practicing before the SEC. Respondent unsuccessfully appealed to the District of Columbia[Circuit] (Altman v Securities Exch. Commn., 666 F3d 1322 [DC Cir 2011]).

The New York Appellate Division for the First Judicial Department applied collateral estoppel and considered only sanction

We find an 18-month suspension to be appropriate under the circumstances. Such a suspension acknowledges the gravity of respondent’s misconduct and the previous misrepresentations regarding his disciplinary history, while at the same time taking into account the mitigation, namely, respondent’s condition and recovery efforts, and his community service.

The initial SEC decision is here.  

The attorney represented a high school friend (Rosen). The Administrative Law Judge rejected a host of contentions, including the assertion by the attorney that he was intoxicated during the conversations at issue

 None of the explanations or defenses that Altman offers can change the plain meaning of the words he spoke. His attempt to distinguish between a legitimate request to continue to get Rosen’s name off the leases and an illegitimate request to change her testimony is tortured, invalid, and high level sophistry. The plain fact is that Rosen’s status had changed after Altman learned on or about January 28, 2004, that the Division wanted to call Rosen as a witness. After that, Altman could not ethically or legitimately seek benefits for Rosen from the persons who were the subject of the proceeding using her status as a prospective government witness as leverage to obtain benefits for her. 

Broke and Broker blog had this story. (Mike Frisch)