Hello everyone and welcome to this Ethics Alert which will discuss the recent suspension of a New York law firm associate lawyer who lied about filing briefs and drafted a fake brief and created false e-mails to support his false statements. The disciplinary opinion is: Matter of McCoobery, 2019 NY Slip Op 00843, Appellate Division, First Department (2/5/18). The link to the opinion is here: http://www.nycourts.gov/reporter/3dseries/2019/2019_00843.htm
According to the opinion, in one matter, a firm partner asked the lawyer to draft an appellate opposition brief. The lawyer wrote and filed the brief without providing it to the partner for review and, when the partner asked to see a draft, the lawyer provided the filed brief to the partner and falsely stated that it was a draft. The partner made revisions to the brief and later discovered that the brief had already been filed.
In the other matter, the partner told the lawyer to send an appellate brief and the record on appeal to the law firm’s printing vendor and to instruct the vendor to serve and file the documents. The lawyer sent the brief and documents to the vendor, but failed to ask for service and filing.
The lawyer also falsely told the partner that he had given the instructions to the vendor and, to cover up the false statements, the lawyer falsely told the partner that he and the opposing counsel had stipulated to an extension for filing the brief. The lawyer also fabricated an opposition brief and provided it to the partner and falsified e-mails to make it appear that he had received the brief from opposing counsel. As a result, the partner drafted a reply brief.
The opinion further states that the lawyer:
“falsely told the partner that the client’s appeal was calendared for this Court’s June 2017 term. On May 1, 2017, when this Court released its June 2017 calendar, the client’s appeal was not on it. After noticing the appeal had not been calendared, the partner told respondent he was going to call opposing counsel to find out why the appeal had not been calendared. Respondent then admitted to the partner that he failed to inform the printing vendor to serve and file the subject documents and admitted his deceptions. On May 2, 2017, respondent tendered his resignation from the firm.”
The lawyer stipulated to the facts and consented to a 3 month suspension. The opinion stated that the lawyer’s misconduct occurred while he was dealing with his father’s terminal illness and death, he had no previous discipline in more than 20 years of practicing law, and no clients suffered “irreparable” harm.
Bottom line: In this case, an associate lawyer at a law firm filed a brief without a partner’s review and lied about it, failed to insure that another brief was filed and lied about that, and then drafted a fake brief and falsified e-mails to cover up his misconduct. Although the opinion states that there was no “irreparable” harm to any clients, I do not know how the failure to file a brief would not result in “irreparable” client harm.
Be careful out there.
Disclaimer: this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship 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.
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