Hello welcome to this edition of the JACPA Ethics Alert which will discuss a New York appellate disciplinary opinion in which a lawyer received a public censure (reprimand) for filing a civil lawsuit after the statute of limitations had expired and falsely notarizing their signatures in the complaint. The case is: In the Matter of Victor Lawrence K. Essien (Admitted as Victor Lawrence Kwesi Essien), 2010 NY Slip Op 06512, 77 AD3d 237 (August 31, 2010).
According to the opinion, the lawyer was retained in March 2005 to prosecute an action against Metro-North, a subsidiary of the NY Metropolitan Transportation Authority (MTA), for injuries sustained two months earlier. The client’s wife also retained the lawyer for a loss of consortium claim. Under New York law, the statute of limitations was 1 year plus 30 days. In June 2005, the client was deposed by Metro-North at a hearing and Metro-North’s attorneys had no further contact with the lawyer until March 3, 2006, when he called to discuss the case. The lawyer was informed at that time that the statute of limitations had expired on February 15, 2006.
The lawyer mailed a complaint to the clients on March 13, 2006 with instructions to sign it, have their signatures notarized, and return it to him. The clients signed the complaint and returned it but did not have it notarized. The lawyer falsely notarized the signatures and filed the complaint on April 4, 2006. The complaint asserted that the “action was duly commenced within one year and ninety days after the. . . cause of action accrued.”
Metro-North filed a motion to dismiss the complaint as untimely and the lawyer filed a response claiming that he had been “lulled” into the delay in filing the action by Metro-North’s repeated promises that a settlement was imminent. During an August 2006 conference call, the judge’s law clerk recommended that the lawyer settle the matter for a small amount of money and he rejected an offer of $2,500.00. In November 2006, the court dismissed the complaint as time-barred.
A Bar complaint followed and a Bar Disciplinary Committee charged the lawyer with violating 4 disciplinary rules by neglecting a legal matter, falsely notarizing client submissions, and filing a false affirmation with the court. The lawyer testified at a referee hearing that he did not want to file a complaint or engage in motion practice “unless it became absolutely necessary” because the claim had only nuisance value, there was weak evidence of liability or injury, and he did not want to diminish the potential settlement amount. He also testified that he thought he “had a good relationship or rapport” with opposing counsel and “did not expect them to get so hard-nosed,” “insisting on the statute (of limitations)” over a “very small claim.”
The lawyer “felt assured a settlement would be reached”, but after he was told that the statute of limitations had run, he felt he had to file a complaint and hope that he could defeat a motion to dismiss by asserting equitable estoppel to force Metro-North to negotiate. Interestingly, even though he believed the claim had only “nuisance value”, he testified that he believed that Metro-North’s settlement offer of $2,500.00 was insufficient. He also testified that he knew the limitations period was one year plus 30 days and that is why he asserted that the complaint had been “duly commenced within one year and 90 days.”
The lawyer claimed that he had no intent to mislead anyone when he falsely notarized his clients’ signatures and he was merely trying to “speed up the process.” He also claimed that there was “nothing fraudulent” or “venal” about such action, which did “not harm anybody,” although it was “wrong” and he promised not to do it again. He stated that, at the time he wrote his response opposing Metro-North’s motion to dismiss, he sincerely believed that his failure to timely file a complaint was because of the Metro North lawyer’s settlement posture, even though, according to his version of events, he only spoke to one lawyer at the hearing, left one message after that, and later asked for a transcript of the hearing from unidentified individual.
The referee found that the lawyer had engaged in “misconduct by failing to file Court documents in a timely manner, by falsely notarizing his client’s signature and by misrepresenting facts in an Affirmation filed with the Court,” and, noting lack of a prior disciplinary record, his work helping people, and his claims that he had no “malicious intent,” recommended a three-month suspension. A Bar Hearing Panel sustained four of the six charges, and decided that public censure was appropriate under the circumstances. The Bar Disciplinary Committee appealed to the appellate court requesting that it confirm the findings of misconduct, reverse the referee’s recommendation of a public censure, and impose a suspension of no less than three months.
The appellate opinion confirmed the censure stating “we have consistently held that public censure is an appropriate sanction in situations involving neglect, where, as here, the misconduct is aberrational, and the attorney has shown remorse and cooperation.” (citations omitted). “Public censure is also called for in cases of false notarization where, again, mitigating factors exist (citations omitted).” The opinion also found mitigating factors, including that the lawyer did not profit from his misconduct and that “the sole misrepresentation in respondent’s affirmation to (the court) concerning the extent of settlement negotiations between himself and the attorney for Metro-North is not enough to warrant the more serious sanction of suspension.”
Bottom line: Although the lawyer received only a public censure, this is a clear illustration of how important it is for lawyers to be diligent and follow the law and the Bar rules, particularly with regard to notarization of signatures.
…be careful out there!
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