Hello everyone and welcome to this Ethics Alert blog which will discuss the recent New York Appellate Division opinion suspending two lawyers who convinced a client to falsify the facts underlying her injury and then covered it up when another lawyer was retained as co-counsel. The opinion is Matter of Rios (and Levy), 2013 NY Slip Op 03439 (App. Div. First Dept. May 14, 2013). The New York disciplinary opinion is at http://www.nycourts.gov/reporter/3dseries/2013/2013_03439.htm.
According to the (long and somewhat stilted) opinion, within a few months of opening their law firm in January 2008, the two lawyers were retained by a client who said she had been injured in a church sidewalk fall. By May 2008, the lawyers apparently knew that the woman’s initial story would not establish a sufficient basis for a lawsuit and they decided to assist the client to manufacture a false story to support an alternative legal claim by “explaining” the law to her.
The client then changed her story and the lawyers filed a lawsuit against a new defendant who owned a home across the street from the church. After the litigation was in a trial posture, the lawyers realized that, due to their lack of prior experience, they were not prepared to try the case without assistance and they brought in another lawyer. In order to prevent that lawyer from learning that the client changed her story, they removed documents from the file that showed that they had initially pursued a claim against the church.
The lawyers stipulated to the facts, admitted guilt on two of the three Bar rule violations, and presented evidence of their public and community service activities as mitigation. A disciplinary hearing panel recommended that the lawyers be found guilty of all charges and be suspended for 9 months and the lawyers appealed.
The appellate opinion affirmed the panel’s findings that the lawyers had violated all three Bar rules, including engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, engaging in conduct that adversely reflects on a lawyer’s fitness as an attorney, and taking on a legal matter that a lawyer knows or should know he or she not competent to handle without associating with a competent lawyer.
According to the opinion, “(b)ased on the record, it is clear that respondents intentionally influenced their client to misrepresent the situs of her accident in order to pursue an action which they knew was fraudulent from its inception”. “Thereafter, respondents, with full knowledge that they were perpetrating a fraud, commenced an action against an innocent third party, filing papers, such as pleadings, containing misrepresentations with the court. Then, for a over a year, respondents continued to conduct discovery and attend court conferences with full knowledge that the action they were pursuing was based on a misrepresentation which they themselves influenced.
“When forced to retain trial counsel, respondents not only failed to apprise counsel that their client’s accident did not occur where she alleged, but in order to conceal their prior misconduct, they sanitized the case file, removing any evidence as to the accident’s actual situs. While respondents never expressly admitted that their behavior was motivated by financial gain, in a case where their legal fee would be determined by the amount they were able to recover for their client, it is clear that respondents engaged in the misconduct alleged and to which they admitted for financial gain and with venal intent.”
Bottom line: This case is another example of lawyers who, apparently in pursuit of money, encouraged a client to make false statements regarding the facts of a claim. In this case, the lawyers compounded their improper conduct by covering it up. The misconduct was discovered when they found out that they were in over their heads and had to associate another lawyer with more experience.
Be careful out there!
Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670