Summertime Hypocrisy from Appellate Division

Rejecting Special Referee's Report, N.Y. Court Suspends Attorney
The New York Law Journal by Mark Fass by August 19, 2008

A former senior attorney for the New York Fire Department who visited his cousin in a psychiatric unit in order to complete the paperwork needed to purchase the cousin's house has been suspended from practicing law for five years. In barring David Clinton, the former chief legal counsel for the Fire Department Bureau of Legal Affairs, from practicing law until September 2013, the Appellate Division, 2nd Department, took the unusual step of rejecting a special referee's report, which had found that Clinton had not violated any ethics rules.

To the contrary, the "evidence reveals that the respondent, without following the requisite protocol, set forth in the regulations of the New York State Department of Mental Hygiene" approached his cousin, Rubin J., with a "deed to execute while [Rubin] was confined to a psychiatric ward ... in a delusional state of mind," the unanimous panel concluded in Matter of Clinton, 2006-00152. "Rubin's vulnerability was patent. The respondent filed and recorded the deed despite being told that he could not obtain signatures on legal documents from patients in psychiatric wards without following accepted procedures." The house at the center of the dispute is located at 237 Decatur St. in Bedford-Stuyvesant, Brooklyn, and shares a backyard with the home directly behind it. The complainant, Rubin J., grew up at 237 Decatur; his cousin, the respondent Clinton, in the other house. Their fathers were brothers and the families used the shared outdoor area.

Rubin J. inherited his father's house in about 1982, according to the referee's report. In roughly 2002, Rubin J. suffered a psychological breakdown, apparently spurred by his regrets over selling family property in Barbados. Although court records do not provide a specific diagnosis of the psychosis, Rubin J. testified that it was a form of depression and paranoia that manifested in fears that people were attempting to infect him with the AIDS virus. While Rubin J. was hospitalized, Clinton visited him and, in exchange for $175,000, secured the transfer of the property's deed. Although Rubin J. and Clinton disagree over whether Clinton was motivated by a desire to help Rubin J. to protect the property from his wife and keep the property in the family or rather to take advantage of Rubin J.'s weakened state, Supreme Court Justice Melvin S. Barasch later found the conveyance "null and void" on the grounds that Rubin J. was not of sound mind when he signed the papers. Rubin J. then initiated the present complaint against his cousin.

OBJECTIVE STANDARD

In reviewing the issue of whether, in addition to voiding the transfer Clinton should be punished, Special Referee George Friedman found it was essential to determine Clinton's "state of mind" in obtaining his cousin's signature. "The gravamen of the within charge is that Respondent acted in a manner which evinces dishonesty, fraud, deceit and misrepresentation and that his conduct adversely reflects on his fitness to practice law," Friedman wrote. The referee concluded that Clinton had acted ethically as he believed his cousin was not too ill to sign the papers. "Mr. Clinton ... believed in good faith that [Rubin J.] had the legal capacity to execute the deed," Friedman wrote. "It is ... clear that neither Justice Barasch nor this Court made any finding ... which would establish any fraud, deceit dishonesty misrepresentation or any hint of venality or even wrong doing on the part of Respondent." In his July 2007 report, therefore, the referee recommended against affirming the charges. Clinton then moved to have the referee's report confirmed. On Thursday, the Appellate Division rejected Clinton's motion and the referee's report, and suspended Clinton for five years. The panel said the referee's report adopted the wrong standard in measuring Clinton's actions.

"The respondent's defense is based on his own nonexpert diagnosis ... that Rubin was of sound mind and was competent to cede ownership of his property without consideration and without the advice of an independent attorney. The respondent's counsel posits a subjective standard, based on what was purportedly in the respondent's mind at the time he had [Rubin J.] execute the deed, notwithstanding the objective facts. That standard was adopted by the Special Referee, and factored prominently in his assessment of the witnesses' credibility," the panel wrote.

"The respondent's position disregards the protection afforded by the New York State Department of Mental Hygiene, the advice of family members, the rules of professional conduct, and rulings by both the Supreme Court and the Appellate Division. " Clinton went to work for the fire department in 1990 and left in 2004 to go into private practice. The panel cited Clinton's "unblemished disciplinary history" and character evidence, including a letter of support from former Fire Commissioner Howard Safir, in opting to suspend, rather than disbar, Clinton.

Presiding Justice A. Gail Prudenti and Justices William F. Mastro, Reinaldo E. Rivera, Robert A. Spolzino and Peter B. Skelos sat on the panel. Hal R. Lieberman of Hinshaw & Culbertson represented Clinton. Lieberman declined to comment. Myron C. Martynetz represented the Grievance Committee for the 2nd and 11th Judicial Districts. Martynetz could not be reached for comment.