Attorneys who helped client change story by ‘explaining’ the law get 9-month suspensions
Posted May 15, 2013 11:40 AM CST
By Martha Neil
Two Fordham University law school classmates who set up a law practice together a few years after graduating are now both facing nine-month suspensions for pursuing a fraudulent personal injury case.
In a Tuesday opinion (PDF), the Appellate Division of New York Supreme Court suspended the licenses of Daniel H. Levy and Shane O. Rios, effective June 13, 2013.
Within a few months of opening the firm in January 2008, the two attorneys signed on a new client who said she had been injured in a church sidewalk fall. But by May 2008, it had become clear that the woman's initial story would not establish a sufficient basis for a winning lawsuit, the court wrote, and the two attorneys helped the client manufacture a false story to support an alternative legal claim by "explaining" the law to her.
The client subsequently changed her story, and Levy and Rios filed suit against a new defendant, who owned a home across the street from the church. Then, as a trial loomed, the two realized that their prior experience as personal injury associates had not prepared them to try the case without assistance and brought in another lawyer to do so. In order to prevent him from learning of the client's change of story, they removed documents from her file that showed their firm had initially pursued a claim against the church, the opinion recounts.
Although the two respondents admitted the facts at issue, as well as liability concerning two of the three ethics charges asserted against them, they argued that they had not violated all of the rules. However, the court found that they had violated all three, which prohibited conduct involving "dishonesty, fraud, deceit or misrepresentation" and conduct that adversely reflects on a lawyer's fitness as an attorney, as well as taking on a legal matter that the attorney knows or should know he or she "not competent to handle without associating with a lawyer who is competent to handle it."
The two lawyers were remorseful and presented evidence in mitigation about their public and community service activities. But, noting that their actions also harmed an innocent third party (the homeowner, who prevailed at trial after the client in the sidewalk-injury case was impeached with evidence of criminal convictions that conflicted with her deposition statements), the court agreed with a Departmental Disciplinary Committee hearing panel recommendation that a nine-month suspension was warranted.
"Here, based 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," the Appellate Division writes. "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."
Hat tip: Legal Profession Blog.