A Gesture Of Handcuffs

A suspension of two years and until further court order has been imposed for conduct in representing a client in an elder abuse investigation by the New York Appellate Division for the Fourth Judicial Department.

The charges in the petition arise from respondent’s representation of a client who was the subject of an adult protective services (APS) investigation that was commenced after an unnamed source provided to APS information indicating that the client had initiated numerous disbursements of funds to herself and other family members from accounts owned or controlled by an elderly relative of the client.

That investigation went nowhere but the attorney nonetheless insisted on retainer agreement changes for his benefit.

After the client had paid a $15,000 retainer to be earned based on hours worked

approximately one week later, respondent arranged for the client to execute a revised retainer agreement that, inter alia, changed the manner of compensation payable to respondent’s law firm from an hourly-based fee to a “fixed fee retainer” in the amount of $15,000.

In the bar proceeding

The Referee found that, thus, the revised retainer agreement effectively entitled respondent to keep the entire $15,000 that had been paid by the client, without regard to the amount of hours worked by respondent or others in his law firm, provided that no entity or agency was seeking to charge the client or the client’s brother with financial elder abuse.

Then

The Referee found that, approximately three weeks later, respondent contacted the client and advised her that the APS investigation was “moving along faster than [respondent] expected” and that respondent needed from the client additional funds in the amount of $25,000 to keep the APS investigation from becoming a criminal case. The Referee found, however, that respondent’s representations to the client regarding the status of the APS investigation were false and made to induce the client to pay the additional funds…

The Referee further found that, when respondent arranged for the client to execute the second revised retainer agreement and to pay the additional funds in the amount of $25,000, respondent had already received information and documentation from the client and others such that respondent knew that the transactions that had prompted the APS investigation had been authorized by the elderly relative for estate and Medicaid planning purposes and that the client had not committed a crime by initiating the transactions.

The final squeeze

The Referee found that, approximately one week after respondent arranged for the client to execute the second revised retainer agreement, respondent sought from the client additional funds in the amount of $30,000. The Referee found that, during a meeting with the client at or about the same time that respondent requested those additional funds, respondent made gestures with his hands to lead the client to believe that she would be in handcuffs and going to prison if the additional funds were not paid. The Referee found that, contrary to respondent’s representations to the client, respondent knew that the client would not be charged with a crime and that his law firm could be entitled to keep the additional $30,000, plus the other funds previously paid by the client in the total amount of $40,000, without performing additional services on behalf of the client.

At that juncture, the client discharged the attorney and secured new counsel.

The Referee found that, although respondent thereafter accepted from the client a check in the amount of $30,000, a stop payment order was subsequently placed on the check, and the client terminated respondent’s services and retained replacement counsel.

As to the client’s conduct

although the Referee made various advisory determinations regarding the legality or propriety of the conduct of the client with respect to the transactions that gave rise to the APS investigation, we decline to confirm or otherwise adopt those advisory determinations because the primary aim of this proceeding is to determine whether respondent has engaged in professional misconduct, and neither the client nor other persons or entities having a potential legal interest in the transactions or related funds is a party to this proceeding.

Sanction

In determining an appropriate sanction, we have considered respondent’s submissions in mitigation, including his statement that he believes his conduct in representing the client in the APS investigation was reasonable under the circumstances. We have also considered in aggravation of the charges the Referee’s finding that, throughout the course of the proceedings before the Grievance Committee and this Court, respondent has made false statements, lacked candor, and given explanations for his conduct that lack credibility. We have also considered that respondent’s misconduct involved an extended course of dishonest or deceitful conduct for personal gain that resulted in substantial harm or prejudice to a client. 

(Mike Frisch)