Attorney Reinstated After 16-Year Disbarment

Plaintiff's Lawyer Reinstated After 16-Year Disbarment
The New York Law Journal by Nate Raymond June 17, 2010

Sixteen years after losing his license, personal injury lawyer Theodore H. Friedman has won his crusade to be reinstated, with the help of a federal judge who first complained about his conduct. Mr. Friedman, 79, once a prominent member of Manhattan's plaintiffs bar, lost his license in 1994 over charges that included giving false testimony after a judge accused him of providing to a jury an exhibit that had not been submitted into evidence. Mr. Friedman said in a statement this week that he is looking forward to returning to practice so long after being disbarred, something he said should "never have happened." "I am well rested and will move on from here and plan to return as soon as possible to trial work," Mr. Friedman said. The Appellate Division, First Department, in a brief order issued Tuesday, accepted the September 2009 recommendation of a departmental disciplinary committee hearing panel that Mr. Friedman be reinstated. The panel rejected a recommendation by staff counsel that Mr. Friedman should not be reinstated because of the severity of his original conduct, his failure to admit his conduct and the possibility that he could repeat his unethical behavior. Mr. Friedman has over the years had the backing of various judges and lawyers in his quest for reinstatement. But after two failed attempts, he received some unlikely assistance from the federal judge who first accused him of submitting evidence to the jury that had not been admitted. Second Circuit Judge Pierre N. Leval in a letter to the chief counsel to the disciplinary committee, called Mr. Friedman's continued disbarment "unfair." "I believe his thirteen years of disbarment have been sufficient punishment," wrote Judge Leval, who declined comment. A lawyer for Mr. Friedman, Paul Grand of Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer, said he believed what "in real measure made the difference" in the panel's decision to reinstate his client was the letter from Judge Leval. Mr. Friedman was also represented by Manhattan lawyer Michael S. Ross.

Mr. Friedman, a Harvard Law School graduate, was a prominent member of New York's personal injury bar and a name partner in Friedman & Eisenstein. His wife is former Manhattan Surrogate Eve Preminger. A referee in 1993 overseeing his disciplinary case called Mr. Friedman "one of, if not the best, trial lawyers in New York." He was a member of the Inner Circle of Advocates and College of Trial Lawyers, and won two cases before the U.S. Supreme Court, according to a 2009 hearing panel report. But in the 1980s, Mr. Friedman was involved in two separate lawsuits that ultimately became the basis of his disbarment. The Manhattan District Attorney's Office in 1987 charged Mr. Friedman with attempting to bribe a potential witness in a wrongful death action against New York City. A jury acquitted him in 1988. Before that, in 1983, Judge Leval, then a district court judge in the Southern District, found that Mr. Friedman "surreptitiously included" an exhibit to be sent to the jury room that had been excluded from evidence in a wrongful death case.

In an affidavit, Mr. Friedman claimed that his co-counsel, Frederick J. Cuccia, accidently sent the exhibit to the jury room thinking it was part of the evidence. But Judge Leval found that Mr. Friedman had not contacted Mr. Cuccia, who was out of the country at the time. In an April 2007 his letter to the First Department disciplinary committee, the judge said Mr. Friedman had "wrongfully offered the court the explanation that Mr. Cuccia had innocently sent in the exhibit." After his 1983 decision, Judge Leval then sent a letter of complaint to the federal court's disciplinary committee, which brought four charges against Mr. Friedman. In a plea deal, Mr. Friedman admitted to one charge that he submitted the affidavit without personal knowledge of the facts. The committee issued a letter of censure in 1986. Both cases then became the subject of an investigation by the First Department's disciplinary committee. Mr. Friedman was accused of 23 counts of professional misconduct, including acts of intentional dishonesty, knowingly filing false and misleading affidavits, and soliciting false testimony from a witness. A special referee, Donald J. Sullivan, in 1993 recommended a two-year suspension after affirming 14 of the counts. Mr. Sullivan sustained counts related to Mr. Friedman's making false statements in an affidavit, but said the committee failed to establish he had put the exhibit in the jury room in the first place. The Appellate Division in 1994 rejected Mr. Sullivan's recommendation and ordered Mr. Friedman disbarred. The court in part appeared to have relied on Judge Leval's 1983 decision, saying Mr. Friedman had "unfairly and reprehensibly cast his own guilt upon a blameless fellow member of the Bar." Matter of Friedman, 196 AD 2d 280. Mr. Friedman has tried at various times to win reinstatement. In 1999, the court denied his motion to modify his disbarment order to a 41/2-year suspension. A hearing panel in 2003 recommended reinstatement on the report of a referee, Thomas A. Demakos. But the Appellate Division also denied that request. Mr. Friedman's 2006 attempt to gain reinstatement was also rejected.

Letters From Judges

His latest effort was made in 2008. Several prominent judges and friends wrote or testified on Mr. Friedman's behalf, often about his public service activities. Ernst Rosenberger, a retired First Department justice who is now of counsel at Stroock & Stroock & Lavan, in a letter said Mr. Friedman had "shown a commitment to worthy public causes," including working with groups seeking Middle East peace and volunteering at a soup kitchen. Also submitted was an April 2007 letter to the disciplinary committee from Judge Leval, who said that although his 1983 decision "was supported by the evidence before me in the post-trial hearing, I believe it would be unfair to Mr. Friedman to continue his disbarment on the basis of my finding." Judge Leval said the Appellate Division's 1994 statement that Mr. Friedman had "cast his own guilt" on his co-counsel "was necessarily predicated on the belief that Mr. Friedman had placed the exhibit in the jury room." Judge Leval said that statement would apparently mean that in researching its decision, the Appellate Division had relied not on Mr. Sullivan's "no doubt different" record but on the judge's earlier conclusion. Judge Leval noted that, unlike in the disciplinary proceedings, Mr. Friedman did not have notice to defend himself in 1983, nor did he have counsel present. The hearing panel's September 2009 report in response to Mr. Friedman's latest petition for reinstatement took note of Judge Leval's letter, saying that while it was clear Mr. Friedman was not disbarred solely on the basis of one issue, the letter was "useful in considering the appropriate disposition" of the petition. At last June's hearing, Mr. Friedman described how he had changed from "resistance to remorse." At first, Mr. Friedman said he fought disbarment because he wanted to remain at the front of the plaintiff's bar and sought to avoid staining his wife's reputation by association. But as the years progressed, Mr. Friedman said his wife did not want him to keep fighting just for her sake. And Mr. Friedman said he came to terms with his misconduct. The First Department panel that ordered Mr. Friedman reinstated included Justices Angela M. Mazzarelli, Richard T. Andrias (See Profile), Karla Moskowiz, Rolando T. Acosta and Dianne T. Renwick. The panel did not discuss the reasons for its action. Nate Raymond can be reached at nraymond@alm.com.