A Lawyer Not A Mediator

A censure has been imposed by the New York Appellate Division for the Third Judicial Department

The charges

According to petitioner, respondent improperly prepared and urged the execution of a child custody agreement purporting to settle a dispute between parents and grandparents regarding the care of the parents’ minor children. All of the parties to the agreement were not only respondent’s friends to a greater or lesser extent, but they were also persons that respondent was contemporaneously representing as clients in separate legal matters unrelated to the custody dispute. After the grandparents commenced a proceeding in Albany County Family Court, respondent prepared the custody agreement unsolicited, without any input from the respective parties, and without giving them the opportunity to review the matter in advance of a meeting that he had arranged at his law office for the purpose of presenting the agreement. Although respondent inserted a provision into the agreement stating that he was not representing any of the parties with respect to the proposed custody arrangement, the petition of charges asserts that he, nevertheless, explained, discussed and provided legal advice at the meeting regarding the custody agreement. After the parties were persuaded to execute the agreement notwithstanding the father’s initial objection, the dispute between the parties intensified and the grandparents, represented by separate counsel, did not settle the pending Family Court matter as provided in the agreement.

 Complaints against respondent were thereafter filed by the parents, who asserted that respondent pressured them into executing a one-sided agreement that adversely affected their custody rights, without an adequate explanation of the risks of signing such an agreement, or providing a reasonable opportunity to seek independent counsel. Respondent served an answer denying the allegations and a Referee was appointed to hear and report. A full hearing was conducted in June 2017, at which respondent was represented by counsel. The Referee thereafter issued a report sustaining the petition of charges. Respondent’s claims that he acted only as a disinterested mediator and that the parties to the agreement waived or consented to any conflict of interest were rejected (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.7 [b]).

 Sanction

Turning to the issue of the appropriate disciplinary sanction, we have considered respondent’s submissions in mitigation from colleagues and clients attesting to his good character. We further note the lack of proof that respondent’s misconduct stemmed from any venal intent. We have also heard from petitioner and observe that respondent’s misconduct is aggravated by, among other things, his significant disciplinary history, which includes a two-year stayed suspension upon findings of conversion and escrow account mismanagement (Matter of Mann, 284 AD2d 719 [2001]), which was later terminated upon respondent’s application (Matter of Mann, 9 AD3d 676 [2004]), and private discipline in the form of two admonitions and a letter of caution (see Rules of App Div, 3d Dept [22 NYCRR] former § 806.4 [c] [1] [i], [ii]). Accordingly, in order to protect the public, maintain the honor and integrity of the profession and deter others from committing similar misconduct, we find that, under the circumstances, respondent should be censured

(Mike Frisch)