Appeals Panel Takes Swipe at Judge Who Follows Law

Panel Faults Judge Over Drastic Remedy for Tardiness
The New York Law Journal by Jeff Storey

A Brooklyn judge who has become known for his sharply worded opinions criticizing lenders seeking foreclosure and their attorneys (NYLJ, Dec. 28) has himself been faulted by an appeals court for adopting a drastic remedy to what the judge regarded as a tardy response to his demand for information. Supreme Court Justice Arthur M. Schack became concerned that a lender's counsel, Steven J. Baum, P.C., was representing both the plaintiff in the case, the assignee of the mortgage, and the defendant Mortgage Electronic Registration Systems (MERS), the assignor. In an order dated Feb. 2, 2009, he denied a motion for direct service but said the attorneys could move to renew within 60 days providing that the Baum firm submitted an affirmation that it had made full disclosure of any potential conflicts and that the plaintiff consented to the situation.  The firm responded with an affirmation that it was not representing both parties in this case, but Justice Schack decided the assurances came too late. Since the affirmation was submitted 123 days after his 60-day deadline, he dismissed the foreclosure complaint "with prejudice" and canceled a notice of pendency.  But the Appellate Division, Second Department, ruled last week in U.S. Bank, N.A. v. Kelvy Guichardo, 19086/08, that only "extraordinary circumstances" would justify such a drastic action, and "a single delay in submitting the affirmation" by the Baum firm did not qualify. "There was no pattern of willful noncompliance with court orders on part of the plaintiff and the Supreme Court gave no warning" that a failure to submit the affirmation within 60 days would result in the action Justice Schack took, the unanimous panel said in an unsigned opinion reversing his decision. Joining the decision were Justices William F. Mastro, Sandra L. Sgroi, Jeffrey A. Cohen and L. Priscilla Hall.

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Alleged Bar Exam Cheater Got Due Process, Panel Says
The New York Law Journal by John Caher  -  January 3, 2012

A woman allegedly caught cheating on the New York state bar exam has failed to persuade an appellate panel that she was denied due process or that the nullification of her test results was not supported by substantial evidence. Dewitt v. Board of Law Examiners, 512523, stems from the July 2009 exam, when proctors said they saw Rose Dewitt copying or attempting to copy another candidate's responses to the multiple choice questions during both days of the exam.  The Board of Law Examiners then retained an expert on test security and cheating, James A. Wollack, an associate professor at the University of Wisconsin-Madison, who had performed "copy analyses" for the board on 27 prior occasions. Mr. Wollack concluded that "statistical evidence" suggested that Ms. Dewitt had copied responses to the multiple choice questions. In addition to her lack-of-proof argument, Ms. Dewitt claimed she was denied due process because she was not provided with the other candidate's address or the underlying data on which Mr. Wollack concluded that she had copied answers. But that issue was not preserved for review because she failed to raise it at a hearing before the board.  Records show that Ms. Dewitt is a 45-year-old immigrant who had practiced law for 14 years in her native Russia and now lives on Staten Island. Ms. Dewitt took an intensive course in English at Manhattan College, transferred to Baruch College to study English as a second language and worked as a paralegal in two law offices before enrolling in the Benjamin N. Cardozo School of Law in 2006, according to court records.

Corrupt Judge Anthony Scarpino in the News

Man who 'killed' wife took control of life-insurance payout for kids
The New York Post by Dareh Gregorian, Dan Mangan and Douglas Montero  -  December 29, 2011

The man being sued for allegedly murdering his Upper West Side wife surreptitiously took control of the $1.6 million life-insurance-policy payout she’d left behind for their two kids, The Post has learned.  Rod Covlin, 39, filed papers in Westchester County Surrogate’s Court in April seeking to be named guardian of the cashed-in Aetna policy that Shele Danishefsky Covlin, a money manager, had left for Anna and Myles.  “I am Anna’s father,” an affidavit reads. “I have her best interests at heart, and I am in the best position to determine her current and future needs.”  He filed a similar petition to control Myles’ half of the windfall.  Covlin’s bid was successful. Surrogate Anthony Scarpino named him guardian in July, apparently unaware he’s the prime suspect in Shele’s Dec. 31, 2009, murder.  The revelations came on the same day he was served with court papers by the New York County Public Administrator accusing him of having caused the wrongful death of the beautiful UBS Wealth Management VP.  Shele's death was initially classified an accident but as The Post first reported it was reclassified a homicide after the body was exhumed three months later.  The suit says Colvin, who's never been charged criminally, "did intentionally, deliberately, willfully, wantonly, maliciously, brutally and without provocation or just cause did strangle, choke, strike, injure, assault, abuse, beat and murder" the mother of his kids.  A source familiar with the investigation said an arrest "could" come by this spring. Both kids were asleep in her apartment at the time of her death. Anna found her body in the bathtub.  The children are supposed to get what remains of the cash at age 18. Covlin has power to invest the money, and he can withdraw the cash with the court’s permission.  A source said Covlin had originally been listed as the beneficiary of the Aetna policy but Shele switched it to her kids about a month before she died as their marriage disintegrated and she told friends she feared he was going to kill her. The circumstances of his taking control of the funds appear shady.  Covlin filed the petition to be named guardian in Westchester even though Shele’s estate case is being heard in Manhattan and the kids already have a law guardian acting on their behalf there.  His petition doesn’t say that there’s an ongoing case or that the kids have a guardian. He also left blank the answer to a question about whether the kids’ custody had ever been the subject of a court order — and an order of protection had been filed against him before and after his wife’s murder, allowing him only supervised visits with the pair.  He also wrote “n/a” under a question asking for the name and address of the kids’ maternal grandfather and grandmother, who have been fighting to keep him from getting their daughter’s money in the Manhattan case. He also touted his financial expertise, saying, “I have managed securities firms throughout my career, held many securities licenses, and traded [professionally],” although court papers show he’s been unemployed for years and spends his time gambling.  He and the kids now live with his parents in Scarsdale. There’s no record of Covlin having notified the county public administrator, which is acting as executor of Shele’s estate, the judge handling the estate or Danishefsky’s family about his action.  Covlin did not return a call for comment.  Marilyn Chinitz of the law firm Blank Rome, which is representing Shele’s family, declined comment.  dareh.gregorian@nypost.com


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Judge blocks Roderick Covlin from slain wife Shele Covlin’s $1.6 life insurance payout; orders hearing
The New York Daily News by Barbara Ross and Helen Kennedy  -  December 29, 2011
Westchester judge didn't know hubby Rod Covlin a suspect, faced court challenge in Manhattan

A Westchester judge yanked Roderick Covlin’s access to a $1.6 million life insurance payout on his slain wife Thursday after learning he is the prime suspect in her unsolved 2009 murder.  That big Aetna life insurance policy is only one of several being fought over: nearly $4 million is at stake for Covlin in the battle to inherit his wife’s estate, the Daily News has learned.  In Westchester, Surrogate Court Judge Scarpino suspended the financial rights he granted Covlin earlier this year when the unemployed backgammon player asked to manage the fortune his wife left their two kids.  Shele Covlin, who was divorcing her husband when she was strangled in her Upper West Side bathtub, had removed him from her Aetna policy, and left it instead to Anna, 11, and Myles, 5.  In his petition, Covlin told the judge that he has his kids’ “best interests at heart” and had experience managing investments and trading stocks professionally.   He never mentioned that his right to oversee his wife's estate was being challenged by her family, who say he’s a gambler who can’t be trusted with the kids’ money, or that a Manhattan Surrogate Court had removed him as executor.  He was readily granted guardianship of the money with no strings attached.  David Bookstaver, spokesman for Office of Court Administration, said Scarpino was not aware of the claims against Covlin.  Bookstaver contacted the judge on vacation after Covlin was sued for wrongful death Wednesday. He set a Jan. 4 hearing to revisit Covlin’s guardianship status.  No one has been charged with the Dec. 31, 2009 murder of the 47-year-old UBS wealth manager but the Public Administrator in charge of her estate filed a civil suit alleging he killed her.  The Daily News has learned Shele Covlin had additional $1 million policies on her life with the Hartford and US Life - and both companies have gone to court asking for guidance about who to pay.  “The New York City Police Department has advised the company that Roderick B. Colvin is a suspect in their homicide investigation into the death of the Insured,” US Life said in a federal filing in March.  It asked the court to take charge of the money, hoping to “avoid being vexed and harassed by conflicting” claims f Covlin is arrested. The issue is still being litigated.  With Kerry Wills

More on Corrupt Surrogate Judge Anthony A. Scarpino, Jr. and his pals:

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Westchester Surrogate Scarpino's Corruption Back in Federal Court

IRS Looking at Surrogate Scarpino, Lawyer Frank Streng and Bank Chairman Link

Tembeckjian's Crimes, Part 3 (Scarpino Criminal Enterprise Cover-Up)

A$tor E$tate to Judge Scarpino'$ Crony Frank Streng

NY's "Ethics Leaders" Celebrate Complicity in 9/11 Fraud by Scarpino and Streng

NY's Surrogate's Courts are "Criminal Enterprises"

Top Judges on Notice of Mounting Allegations of Corrupt Surrogate Scarpino

Judge Scarpino Approves Convicted Embezzler to Handle Disabled Child's Money

Surrogate Judge and Friends Holding Money From Cancer Victim in 19-Year Old Estate

Judge's Cronies Keep Money from Cancer Patient in Mother's 19-Year-Old Estate

Scarpino and 2 Other Judges Covered Crony's 9/11 Donation Fraud

More Fireworks on Surrogate's Court 'Criminal Enterprise'

Westchester Surrogate's Court's Dastardly Deeds

9th Judicial District Attorney Accused of Stealing From Client, Filing False Documents

New City attorney accused of stealing from client
The Journal News by Steve Lieberman  -  December 28, 2011

NEW CITY, NY — An attorney for three Ramapo villages already suspended from practicing law on professional misconduct charges has been accused separately of stealing $70,000 from two clients in a medical malpractice case, the Rockland district attorney announced today.  Joel A. Grossbarth denied the four felony charges through his lawyer. Grossbarth has been released on $25,000 bail by Clarkstown Justice Rolf Thorsen, pending a hearing on March 5 or potential grand jury action.  The charges resulted from his private practice, not his employment with the villages of Airmont, New Hempstead and Sloatsburg. Grossbarth took a leave of absence from representing the municipalities after his suspension in November involving a different set of allegations by the state organization that oversees the conduct of attorneys.  The criminal charges brought by the District Attorney’s Office are second-degree grand larceny, second-degree criminal possession of a forged instrument, and two counts of first-degree offering a false instrument. The top charges carry a maximum of 15 years in state prison.  District Attorney Thomas Zugibe said in a news release that between July 16, 2010, and July 27, 2010, Grossbarth stole $70,000 from a couple in a malpractice case.  The couple received a check in the mail for $70,000 and told Grossbarth that they did not wish to settle for less than $350,000, Zugibe said. Grossbarth is accused of telling the couple he would return the check to the opposing party, but instead deposited the money into his own account.  Grossbarth also is accused of falsely filing a hold harmless agreement and general release with the Rockland County Clerk, settling the case without knowledge or authority of the victims.  Zugibe said his investigators have received complaints from other clients of Grossbarth, whose arrest resulted from an investigation by the Rockland County Special Investigations Unit.  Grossbarth’s lawyer, John Edwards, said the New City attorney would plead not guilty to the four charges.  Grossbarth, 50, of 29 Linden Court, was suspended last month from practicing law by a state Supreme Court justice pending a hearing into professional misconduct charge brought by the Grievance Committee for the Ninth Judicial District. The committee acted on a complaint filed by Rudolph Gregus and his wife, who had hired Grossbarth in 2005.  People who believe they have been similarly victimized can the Rockland District Attorney’s Office at 845-638-5001.

Judge Sanctions Bank, Law Firm in Foreclosure Case

Judge Sanctions Bank, Law Firm in Foreclosure Case
The New York Law Journal by Andrew Keshner  -  December 28, 2011

A state judge has hit HSBC Bank and a Rochester law firm with sanctions in a case where he already dismissed with prejudice a foreclosure action and unsuccessfully demanded that a top HSBC executive appear at a sanctions hearing. Brooklyn Supreme Court Justice Arthur M. Schack issued a maximum $10,000 sanction against HSBC and a $5,000 sanction against the law firm of Shapiro, DiCaro & Barak, holding that both parties engaged in "frivolous conduct" during an attempted foreclosure against Bedford-Stuyvesant homeowner Ellen Taher.  Justice Schack, who is known for taking hard looks at foreclosure actions, held last summer that the bank lacked standing and called assertions made in an attorney affirmation "patently false." He also ordered Irene Dorner, the CEO of HSBC North America Holdings, to personally appear at a sanction hearing, but she did not and instead appeared through counsel (NYLJ, July 14 and 18).  In his Dec. 22 sanctions ruling, Justice Schack faulted HSBC's attorney at Mayer Brown for claiming that the bank only learned in July of the foreclosure from its servicer, Ocwen Loan Servicing. "HSBC sounds like a combination of Pontius Pilate and Sergeant Schultz in the classic 1960's television comedy, Hogan's Heroes. HSBC washes its hands of any responsibility and places any blame upon Ocwen, its servicer for the Taher mortgage," the judge wrote in HSBC Bank v. Taher, 9320-2009, later saying the bank could not "claim ignorance."  Justice Schack also faulted Frank Cassara, an attorney for Shapiro DiCaro, for not explaining that an HSBC representative in his attorney affirmation was an Ocwen employee, saying "a reasonable attorney" would have do so. The "course of conduct" of Shapiro DiCaro and Mr. Cassara "was not reasonable," he wrote.  An HSBC spokesman said that the bank "did not service this loan and neither prepared nor filed any of the underlying legal documents presented to the court. HSBC's role in this case is limited to that of Trustee."  Goldberg Segalla represented Shapiro DiCaro. Patrick B. Naylon of Goldberg Segalla noted that the underlying foreclosure dismissal is being appealed. "Moreover, we intend to appeal this most recent decision as well," he wrote in an e-mail. "We do not believe an attorney or a client should be punished while proceeding in reliance on existing law. Mortgage foreclosures are not popular cases these days, but our system provides for zealous representation by attorneys for anyone appearing before the Judiciary. Protecting attorneys who appear for currently unpopular clients or causes from unwarranted sanctions is of the utmost importance to our system of Justice."

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Schumer's Brother-in-Law Stirs Controversy in Federal Judicial Nomination

Short Hills resident's nomination stirs controversy
www.NorthJersey.com by Lindsey Kelleher  -  December 27, 2011

Short Hills resident Kevin McNulty was nominated by President Barack Obama to serve as U.S. District Court Judge for the District of New Jersey earlier this month.  The nomination, announced by Sen. Frank Lautenberg (D-N.J.) and Sen. Robert Menendez (D-N.J.) Dec. 16, has recently stirred up controversy.  The New York Post reported McNulty, 57, who is Sen. Charles Schumer's (D-N.Y.) brother-in-law, was nominated for this judge position at the last minute by Lautenberg so the two senators would stay politically close and connected. According to the Post article from Dec. 26, 87-year-old Lautenberg is concerned about losing his Senate seat during re-election time in 2014 because of his age. Schumer, who is influential in the Democratic Party, could stop Lautenberg from losing this position, the report continued.  According to Lautenberg's spokesman Caley Gray, information in the New York Post article is untrue.  "The New York Post story is complete fiction from a New York tabloid with a well-known partisan agenda. Sen. Lautenberg always maintains the highest standards in the judicial nominations process, and Kevin McNulty is one of the finest lawyers the senator has ever recommended for the bench," said Gray in a press release.  Gray said in an interview with The Item of Millburn and Short Hills Dec. 27 that former federal judge John J. Gibbons - and not Schumer - recommended McNulty to Lautenberg for the judge position in 2009. According to Gray, in 2009 Lautenberg and members of his staff interviewed McNulty for this position, and he has been on Lautenberg's radar for this position since then.  Gray said that McNulty is ranked as unanimously well-qualified by the American Bar Association, and that Lautenberg nominated McNulty as New Jersey's district court judge for his merits.  In a press release from Sen. Lautenberg's office from October 2011, Lautenberg stated, "Mr. McNulty is an accomplished lawyer with decades of experience in public service and the private sector."  Gibbons, a former Millburn resident who now lives in Maplewood, told The Item Dec. 27 that he recommended McNulty to Lautenberg. Gibbons and McNulty are partners at Gibbons P.C. Law Firm in Newark. According to Gibbons, McNulty has significant trial experiences, and has previously worked in the U.S. Attorney's Office as chief of the appellate section.  "He is an excellent appellate lawyer and a fine writer," Gibbons said. "The public will benefit from his nomination."  According to a biography about McNulty on the Gibbons law firm's website, he has litigated and counseled clients in a wide variety of pharmaceutical, intellectual property, commercial, criminal and appellate matters. McNulty has a B.A. from Yale University and graduated from New York University School of Law, (J.D., cum laude), in 1983.  In an email to The Item, McNulty said he is unable to comment on his nomination.  E-mail: kelleher@northjersey.com

The Nuts and Bolts of Legal Malpractice

The Nuts and Bolts of Legal Malpractice
The New York Law Journal by Andrew Lavoott Bluestone  -  December 27, 2011

Every attorney has a story and an opinion about legal malpractice. They often rate the work of other attorneys on an attorney malpractice scale. These opinions are freely stated, and clients may be told that another attorney has committed legal malpractice. In general, what the attorneys are saying is that a specific act of another attorney fell below the standard believed to be "good and acceptable" by the opinion holder. However, that's just the start of the analysis.  Importantly, this question of "departure" is but the first of four elements of legal malpractice, and generally, the easiest to discern. Human behavior is abundantly full of mistakes, hesitations, and wrong turns. Attorneys make mistakes, for both human and institutional reasons. Human reasons for mistakes are obvious. Lack of sufficient knowledge, miscalculation, inattention, family crises, personal character flaws, substance abuse problems, physical problems all create mistakes.  Institutionally, attorneys over- book themselves in order to attempt to work to full capacity. Long delays between court dates, or between litigation events, requires that multiple cases be worked on at the same time. For attorneys who practice in contingent fee areas, there is no guarantee of cash flow, and a common practice is to file more cases than one might service at any given time. Large firms have to cultivate a pyramidal scheme of partners and associates, and those associates must be kept at work. So it goes.  Departure is the first of the four elements of legal malpractice. This article will catalogue the four elements and sub-elements of legal malpractice as an attempted guide to the analysis of whether any particular legal outcome is legal malpractice and whether it can be prosecuted.

Departures

In order to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney "failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession"1 and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages,2 beyond which a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages but for the lawyer's negligence."3

Proximate Cause

As a second element, plaintiff must plead and prove that the departures "from good and accepted practice were the proximate reason for the loss sustained."4 Another way of saying this is that plaintiff must demonstrate "that he or she would have prevailed in the underlying action [or transaction] or would not have incurred any damages" except because of negligence of the attorney.5  Standing is one aspect of proximate cause. One must have a right to sue the attorney before the attorney's departure proximately cause damage. Privity of contract, no longer necessary in almost any other sphere of the law, still obtains here.  In legal malpractice cases against criminal defense attorneys, the proximate cause of the damages is the guilty plea, or conviction, not representation. This determination is viewed as a policy decision by the courts.6 To state a cause of action for legal malpractice arising from negligent representation in a criminal proceeding, a plaintiff must allege his innocence or a colorable claim of innocence of his guilt. Id.  One obvious example of lack of proximate cause occurs when the underlying claim was already barred by the statute of limitations before commencement even though the attorney's negligence was "clearly inexcusable."7 Another example would be one in which it is clear that plaintiff was responsible for her own problem, such as failing to cancel a contract of sale.8  Other examples arise in the settlement of the underlying case.9 In Rupert v. Gates & Adams PC, plaintiff claimed shortcomings in divorce representation, which then was resolved in a global settlement which itself resolved a bankruptcy proceeding. "In doing so, plaintiff precluded pursuit of the very means by which defendants' representation of plaintiff in the matrimonial action could have been vindicated," the Fourth Department held. Nevertheless, the rule generally remains that a legal malpractice action remains viable if it is alleged that the settlement of the action was effectively compelled by mistakes of counsel.10 Beyond the scope of this article is a contrary line of matrimonial cases in the First Department in which mere settlement (along with the rote allocution that the client was satisfied with the attorney's work) deprives them of a legal malpractice cause of action.11  Bankruptcy filings by a client are often associated with legal cases gone wrong, and factor into the analysis of standing to bring legal malpractice claims. Assets of the debtor are property of the estate, and not property of the debtor. A pre-petition legal malpractice lawsuit or cause of action becomes an asset of the estate. Failure to disclose a pre-petition legal malpractice cause of action in the schedules of a bankruptcy petition deprives the plaintiff of the legal capacity (standing) to sue for legal malpractice later. It is the trustee, and only the trustee in bankruptcy who has that standing.12  Attorney fee awards may similarly deprive plaintiff of standing to bring the action, or may be enunciated as "blocking" plaintiff from suing under res judicata.13 The reasoning goes that legal fees may not be awarded in the face of legal malpractice, and if legal fees are awarded, in arbitration, or as a charging lien,14 or as an application for fees in a bankruptcy matter,15 or in other circumstances, then there could have been no malpractice, whether the issue was raised or not. Hence, when plaintiff sues for legal malpractice after an attorney fee has been awarded, the case is dismissible under res judicata or collateral estoppel.

'But for' Issues

The third element of legal malpractice is "but for" which has become the shorthand for the "case within a case" or "lawsuit within a lawsuit." It is not completely clear where "proximate cause" ends and "but for" begins, but they are doctrinally different. Every negligence case requires "proximate cause," but only legal malpractice cases require "but for" causation.  This requirement is a distinctive "feature of legal malpractice actions arising from an attorney's alleged negligence in preparing or conducting litigation." It is additional to the element of proximate cause, requiring the jury to find the hypothetical outcome of the underlying litigation before finding the attorney's liability in the litigation before it.16 Failure to allege "but for" causation is sufficient to dismiss the case.17 Success but for the negligence of counsel is the required proof. 18  Courts often determine that the allegations of a complaint are "speculative." As an example, in 180 E. 88th St. Apt. Corp. v. Law Off. of Robert Jay Gumenick,19 the First Department found "in any event" that causation was "speculative and otherwise unsubstantiated by the record." Another case,Stackpole v. Cohen, Ehrlich & Frankel, LLP,20 discusses whether a doctor would not have purchased an apartment but for the attorney's negligence. The First Department reviewed testimony that the doctor was aware of the "horrors" of amending the certificate of occupancy several years earlier in an unrelated transaction, and so she could not blame the attorneys for this particular outcome.  One particularly unique issue is the attorney judgment rule.21 "Attorneys are free to select among reasonable courses of action in prosecuting clients' cases without thereby exposing themselves to liability for malpractice."22 Questions as broad as the selection of unsuitable experts,23 the selection of questions on cross-examination and what causes of action to bring are subsumed within the attorney judgment rule.

Ascertainable Damages

Fourth and last, damages in a legal malpractice case are designed "to make the injured client whole."24 Those damages are calculated depending upon the situation in which the legal malpractice case arises. The simplest case is that of a personal injury action never started, in which the statute of limitations has run. There, the finder of fact must determine the value of a hypothetical judgment25 that would have been obtained had the attorney commenced the action. Put another way, the measure of damages is generally "the value of the claim lost."26  Plaintiff must plead and prove actual ascertainable damages as a result of the attorney's negligence.27 The Second Department in Siciliano v. Forchelli & Forchelli noted, mere speculation about a loss from an attorney's "alleged omission is insufficient to sustain a prima facie case of legal malpractice."28  Collectibility is an issue in the determination of damages. After plaintiffs prove they would have obtained a specific dollar verdict, they then must prove (in the Second, Third or Fourth Department) how much of that verdict would be collectible. Damages recoverable are limited to the amount that "could or would have been collected" in the underlying action.29 As noted by the Second Department, collectibility of a "hypothetical judgment against the underlying tort-feasor is a factor to be considered by the trier of fact."30 In the First Department, the burden is on defendant to show non-collectibility.

Conclusion

Legal malpractice consists of four elements. Almost anyone can recognize the first, and in most cases, the departure is obvious, patent and prominent. Proximate cause and ascertainable damages are fairly easy to determine, after looking at privity and standing.  The major battleground in legal malpractice is in the "case within a case" analysis. Plaintiffs lose underlying cases all the time. In trip and fall cases, there are defenses of notice, reasonable care and de minimus defects. In car cases, there are defenses of serious physical injury. In medical malpractice there are medical judgment defenses.  In all cases, the underlying matter is subject to technical defenses of statute of limitations, standing, collateral estoppel and res judicata, as well as the more general defense that "plaintiff would have lost the case." It is here that the major battle on otherwise obvious legal malpractice cases takes place.  Andrew Lavoott Bluestone is an attorney in Manhattan, specializing in legal malpractice litigation. He is board certified in legal malpractice by the American Board of Professional Liability Attorneys.

Endnotes:
1. Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438 (2007); Leder v, Spiegel, 9 NY3d 836 (2007).
2. McCoy v. Feinman, 99 NY2d 295 (2002).
3. Davis v. Klein, 88 NY2d 1008 (1996).
4. O'Callaghan v, Brunelle, 84 AD3d 581 (1st Dept. 2011).
5. Hamoudeh v. Mandel, 62 AD3d 948 (2d Dept. 2009); Markowitz v, Kurzman Eisenberg Corbin Lever & Goodman LLP, 82 AD3d 719 (2d Dept. 2011).
6. Carmel v. Lunney, 70 NY2d 169 (1987).
7. Dempster v. Liotti, 2011 NY Slip Op 4408 (2d Dept. 2011).
8. Bells v. Foster, 83 AD3d 876 (2d Dept. 2011).
9. Rupert v. Gates & Adams PC, 83 AD3d 1393 (4th Dept. 2011).
10. Garnett v. Fox, Horan & Camerini LLP, 82 AD3d 435 (1st Dept. 2011).
11. Harvey v. Greenberg, 82 AD3d 683 (1st Dept. 2011); Weissman v. Kessler, 78 AD3d 465 (1st Dept. 2010); Katebi v. Fink, 51 AD3d 424 (1st Dept. 2008).
12. Whelen v. Longo, 7 NY3d 821 (2006).
13. Mahler v. Campagna, 60 AD3d 1009 (2d Dept. 2009).
14. Siegel v. Werner & Zaroff, PC, 270 AD2d 119 (1st Dept. 2000).
15. Breslin Realty Dev. Corp v. Shaw, 72 AD3d 258 (2d Dept. 2010).
16. McKenna v. Forsyth & Forsyth, 280 AD2d 79 (4th Dept. 2001).
17. Waggoner v. Caruso, 14 NY3d 874 (2010).
18. Davis v. Klein, 88 NY2d 1008 (1996).
19. 180 E. 88th St. Apt. Corp. v. Law Off. of Robert Jay Gumenick, 84 AD3d 582 (1st Dept. 2011).
20. Stackpole v. Cohen, Ehrlich & Frankel, LLP, 82 AD3d 609 (1st Dept. 2011).
21. Iocovello v. Weingrad & Weingrad, 4 AD3d 208 (1st Dept. 2004); Rosner v, Paley. 65 NY2d 736 (1985).
22. Dweck Law Firm LLP v. Mann, 283 AD2D 292 (1st Dept. 2001).
23. Dimond v. Salvan, 78 AD3d 407 (1st Dept. 2010); Dimond v. Heinz Pet Prods. Co. 298 AD2d 426 (2d Dept. 2002).
24. Shayne, supra; Campagnola v. Mulholland, Minion & Roe, 76 NY2d 38 (1990).
25. McKenna v. Forsyth & Forsyth, supra.
26. Campagnola, supra.
27. Barnett v. Schwartz, 47 AD3d 197 (2d Dept. 2007).
28. Siciliano v. Forchelli & Forchelli, 17 AD3d 343 (2d Dept. 2005).
29. Schmitt v. McMillian, 175 AD 799 (1st Dept. 1916); Vooth v. McEachen, 181 NY 28 (1905).
30. Chiaffi v. Wexler, Bergerman & Crucet, 116 AD2d 614 (2d Dept. 1986).

Schumer Plays Santa in Federal Judgeship to Brother-In-Law

Schumer bro-in-law judge nod stuns NJ
The New York Post - EXCLUSIVE - by Josh Margolin  -  December 26, 2011

Sen. Charles Schumer’s brother-in-law was quietly nominated this month to a federal judgeship in New Jersey — a move that has some in the Garden State crying political foul, The Post has learned.  Kevin McNulty, who is married to Schumer’s sister, Fran, was named to the US District Court by the White House late on Friday, Dec. 16. According to a boilerplate quote, President Obama believes McNulty is a “distinguished individual” who “will serve the American people with integrity and a steadfast commitment to justice.”  New Jersey’s two US senators, Frank Lautenberg and Robert Menendez, followed that up with their own news release heaping praise on the nominee.  What no one mentioned is that McNulty, 57, was the last-minute choice of Lautenberg, who had been leaning toward other candidates until surprisingly submitting McNulty’s name to the White House.  Lautenberg and his aides have given no public explanation for the decision to go with McNulty even though the latter had never been publicly touted as a contender for the job, which carries life tenure and a $174,000-a-year salary.  “No one knows why he did it,” said one person involved in the nomination process. “Everyone thinks it’s all about 2014 and Frank making sure he has Chuck in his corner.”  The White House declined to comment, as did McNulty.  Lautenberg’s reps denied any political motives and stressed that McNulty, who lives in upscale Short Hills, won the nod on the merits. He is a senior partner at Gibbons PC in Newark.  Aides also insisted that Lautenberg was clueless about McNulty’s relationship to Schumer when he first looked at him in 2009.  “It is complete fiction to suggest that there was any deal or that Kevin McNulty was brought into the process at the last minute,” said Lautenberg spokesman Caley Gray.  People involved in the judicial-nomination process in New Jersey told The Post they believe the surprise nomination was a naked political maneuver by the 87-year-old Lautenberg to stay in Schumer’s good graces. Lautenberg is worried that party elders will try to push him out of his beloved Senate seat because of his advanced age — something that Schumer, one of the party’s top opinion makers and fund-raisers, would be able to stop.  “McNulty came out of left field,” said another source involved in the Jersey judicial politics. “McNulty’s not a dumb guy, but people were just, like, ‘How’d that happen?’” Schumer spokesman Mike Morey said Schumer played no part in his brother-in-law’s nod. He insisted Lautenberg could never lose Schumer’s backing.  “Chuck Schumer has supported Frank Lautenberg through thick and thin, both in primaries and general elections,” Morey said. “It’s laughable to think he wouldn’t support him in the future.”  jmargolin@nypost.com

Fraudster Lawyer, Accountant Removed From $400 Million Estate

Lawyer, Accountant Removed From Heiress' Estate
The Assocaiated Press  -  December 24, 2011

Citing evidence of tax fraud, Manhattan Surrogate Court Judge Kristin Booth Glen has suspended the attorney and accountant for a late Montana copper mining heiress from administering her $400 million estate.  Surrogate Glen on Friday said there was evidence that Huguette Clark's attorney, Wallace Bock, and accountant, Irving Kamsler, engaged in tax fraud that resulted in $90 million in unpaid federal gift taxes and penalties. Both deny any wrongdoing. Mr. Kamsler resigned Wednesday from administering the estate.  Ms. Clark's family has accused the pair of plundering her fortune. The Manhattan District Attorney's Office has been looking into how Ms. Clark's affairs were managed in the past two decades, people familiar with the probe have said.  The reclusive Ms. Clark, a U.S. senator's daughter, was 104 when she died in May.

More Political Chaos Keeps Federal Bench Unable to Deal with Justice

U.S. Senate Blocks Green Nomination for Western District
The New York Law Journal by John Caher  -  December 23, 2011

A long vacant federal judgeship in the Western District will apparently remain vacant for the time being as Congressional Republicans have blocked the nomination of Monroe County District Attorney Michael C. Green.  Mr. Green yesterday said he was advised by the White House that his nomination has been returned by the Senate and will not be resubmitted. The White House confirmed that the nomination is dead.  "I appreciate the fact that the president nominated me," Mr. Green said. "Certainly, I was frustrated that after three years I couldn't even get the Senate to vote on it."  Mr. Green, 50, a prosecutor in Rochester for the past 25 years and the district attorney for eight years, was recommended by Democratic Senator Charles Schumer for the vacancy created in March 2009 when Judge David Larimer took senior status. Mr. Green did not seek re-election this year as the Senate Judiciary Committee advanced his nomination on June 16.  White House spokesman Brandon Lepow confirmed that Mr. Green's nomination was returned to President Barack Obama by the Senate and will not be resubmitted. Mr. Lepow would not comment on why the nomination was blocked, but Mr. Schumer said in a statement that "partisan politics stood in the way."  A spokeswoman for Senator Charles Grassley, an Iowa Republican on the Judiciary Committee, yesterday said problems surfaced during a background investigation of Mr. Green.  "Members had concerns with his background," said spokeswoman Beth Levine. "Mr. Green knows what the committee's concerns were. There were questions that arose during the background investigation. It turns out the White House isn't re-nominating so it sounds like they had concerns as well."  Mr. Green disputed Ms. Levine's statement and said the background investigation was completed before he went to, and was approved 17-1 by the Judiciary Committee.  "All of the background information was before the Judiciary Committee and I got thrown a 17-1 vote, with the only 'no' vote coming from [Republican] Senator [Mike] Lee of Utah, who publicly issued a statement saying he had concerns because I had never done federal civil work," Mr. Green said. "It is unbelievable [that Mr. Grassley's office] would say that."  Mr. Green said he was not given details as to why his nomination was derailed, but suggested it had to do with local politics. He said Mr. Schumer's office told him that someone in the Rochester area was attempting to undermine the nomination and got the ear of Mr. Grassley.  "The only questions Grassley raised were about a local political race, a local D.A.'s race," Mr. Green said. "Why he was getting involved in that, I have no idea."

Stephen Gillers, a professor at New York University School of Law and an ethics expert, said the U.S. Department of Justice contacted him after receiving an anonymous letter alleging that Mr. Green had violated ethical standards by endorsing his first assistant as his successor in the district attorney's office while the nomination was pending. Mr. Gillers said he had never heard of Mr. Green until receiving that request.  "Green's nomination got derailed because someone wrote an anonymous letter after he was confirmed [by the committee] but before the Senate voted," Mr. Gillers said in an interview. "Justice asked me if it was a legitimate criticism."  Mr. Gillers said it was unclear where the anonymous letter came from or the motivation behind it. He said he reviewed the letter and a subsequent letter Mr. Grassley sent to Mr. Green raising questions about his ethics.  "There are a lot of factors that go into these things," Mr. Gillers said. "It may have been intended to embarrass the president. It may have been political pay-back. And it may have been an erroneous belief that he did violate ethics. My job was to speak to the ethical issues, and I did."  In a Dec. 2 letter to Mr. Grassley and Judiciary Committee Chairman Patrick Leahy, D-Vermont, Mr. Gillers said Mr. Green did nothing wrong in endorsing his assistant, Sandra Doorley.  "Mr. Green endorsed one candidate only, had the support of [a] State Bar opinion that doing so was appropriate, indeed of value, and had a non-partisan basis for his endorsement," Mr. Gillers said in the letter. "His decision was ethical and compliant with the New York Rules of Professional Conduct and the Code of Conduct for U.S. Judges."  Mr. Gillers said in the letter that there is "no basis to conclude" that Mr. Green endorsed Ms. Doorley to further his chances of Senate confirmation.  Additionally, an issue arose locally when Mr. Green kept on the payroll for the remainder of the year five prosecutors Ms. Doorley intended to fire. It is unclear why that would be an issue, but Mr. Green said it was raised by his opponents in Congress.  Mr. Green, a former Republican who switched parties to run for district attorney when his own party would not support his nomination, is highly regarded and his nomination was strongly endorsed by local attorneys.  In an interview last summer with the Law Journal, Monroe County Public Defender Timothy P. Donaher, whose office butted heads with Mr. Green's office, repeatedly praised the prosecutor.  "Mike, before he became D.A., was known as one of the most prepared trial prosecutors that office had ever seen," Mr. Donaher said. "I don't think anyone works harder. From a defense perspective, he is a thorough, aggressive prosecutor, but a fair guy who is always willing to listen."  A local community leader said Mr. Green was instrumental in establishing a program in which drug forfeiture monies are used to support an educational/athletic/mentoring program at the local Boys and Girls Club.  "Mike is incredibly committed to this community," said I.C. Shah, former chairman of the Boys and Girls Club. "He is intelligent. He is passionate. He knows the law. It is very rare to find a combination of passion, commitment, knowledge and dedication, and he has all four."  Mr. Green's first boss, Rochester attorney James Morris of Morris & Morris, where he began his legal career, said Mr. Green "is a good lawyer. But he has one characteristic above all. He is scrupulously honest and highly ethical."  The only open opposition to Mr. Green's appointment, at least until the issues arose in the district attorney's race, came from a minority of the American Bar Association vetting committee, which expressed concern over his lack of experience in civil practice.  Mr. Green said he has not decided what he will do when his tenure as district attorney ends next week and is considering his options.  "It is time to look forward," Mr. Green said. "The fact that this opportunity closes just means others become open. I am excited about those opportunities."  Mr. Obama has suffered a number of setbacks in his efforts to fill judicial vacancies. Currently, 16 nominees, all of whom were approved unanimously by the Judiciary Committee, are awaiting Senate action.  Earlier this month, Senate Republicans blocked the nomination of Caitlin J. Halligan for the U.S. Court of Appeals for the District of Columbia Circuit. Ms. Halligan, a former New York solicitor general, is general counsel for the Manhattan District Attorney's Office.  John Caher can be contacted at jcaher@alm.com.

Defense Attorney Helps Client Get Another 4.5 Years in Prison

Cameron Douglas, serving 5 years for drug peddling, gets another 4.5 years for jailhouse possession
The New York Daily News by Tracy Connor  -  December 21, 2011

Celebrity deejay convinced a defense lawyer to smuggle anti-anxiety pills in her bra

A judge said Wednesday that Cameron Douglas is the most reckless criminal who’s ever been in his courtroom — and gave him an extra four years in prison to clean up his act.  The drug-addict son of Hollywood powerhouse Michael Douglas is already serving five years in prison for peddling meth and heroin at a trendy Manhattan hotel.  He got an extra 54 months tacked on for repeatedly violating jailhouse rules to get his hands on smack and prescription pills.  “I don’t believe that I have had another case ever...of a defendant who has so recklessly, and flagrantly, and wantonly and criminally acted in as destructive and manipulative a fashion,” Judge Richard Berman said.  Prosecutors had recommended an extra 12 to 18 months, but Berman said they needed to stop coddling Douglas and more than doubled that.  Douglas, 33, had hoped to get off with treatment — blaming his addiction instead of himself for his predicament.  “You see, your honor, I cannot seem to find comfort in my own skin,” he said tearfully. “I feel ashamed. I feel defeated.”  The judge wasn’t in a sympathetic mood, noting that Douglas had lied to investigators about how he got a pill and some heroin while in lockup.  Douglas, the grandson of “Spartacus” legend Kirk Douglas, also convinced a defense lawyer to smuggle anti-anxiety pills to him in her bra.  When Douglas was initially sentenced on the 2009 arrest, the judge warned it was the druggie’s last chance.  He gave Douglas a five-year sentence — half the mandatory minimum — because he agreed to help the feds prosecute his supplier. Douglas testified in that case earlier this year.  Although the deejay has flunked out of rehab a half-dozen times, he insisted Wednesday he’s ready to kick his habit once and for all.  Berman recommended Douglas be transferred to a facility that has drug-treatment and be allowed visits with his famous family.

Judge Recuses From Foreclosure Involving His Lender

Judge Recuses From Foreclosure Involving His Lender
The New York Law Journal by Andrew Keshner  -  December 21, 2011

A judge whose widely publicized decision to cancel the mortgage of a Long Island homeowner was overturned has now recused himself from the case, with public records showing he holds a mortgage through the same lender. Acting Supreme Court Justice Jeffrey Arlen Spinner in Suffolk County recused himself from IndyMac Bank v. Yano-Horoski, 17926-2005, the day after the lender's attorney asked him to step aside. The lawyer referred to "a commercial relationship" between the judge and the lender, OneWest Bank, which had acquired the assets of IndyMac Bank from the FDIC, the receiver. IndyMac was the original plaintiff in the action. Justice Spinner wrote that he was taking the action "[u]pon the court's own initiative, for reasons which are dehors the record" but provided no other details. A review yesterday of the Suffolk County clerk's online database shows IndyMac Bank is listed as the mortgagee for a residence listing the justice as one of the mortgagors. The mortgage was filed on Jan. 31, 2004. Justice Spinner, through a court spokesman, declined to comment because the case is pending. Justice Spinner canceled Diana Yano-Horoski's $292,500 mortgage and judgment of foreclosure on her East Patchogue home in November 2009, faulting lender officials for their "harsh, repugnant, shocking and repulsive" treatment of Ms. Yano-Horoski during settlement conferences over which he presided (NYLJ, Nov. 23, 2009). The canceled mortgage was reinstated when the Appellate Division, Second Department, held the "severe sanction was not authorized by any statute or rule nor was the plaintiff given fair warning that such a sanction was even under consideration" (Nov. 22, 2010).  With the mortgage reinstated, the homeowner's new pro bono attorney, Ivan E. Young of the Young Law Group in Bohemia, sought a vacatur of a default judgment obtained by the bank against his client. Mr. Young claimed improper service, extrinsic fraud and newly discovered evidence.  OneWest countered with a dismissal motion and the case was scheduled for oral arguments on Dec. 7 before Justice Spinner.

In a faxed Dec. 6 letter, an attorney representing IndyMac Bank, Allan J. Arffa, a partner with Paul, Weiss, Rifkind, Wharton & Garrison, wrote, "Our client has informed us of certain developments, relating to a commercial relationship that exists between Your Honor and OneWest, that reasonably call into question Your Honor's impartiality in this matter, or at the very least clearly create an appearance of partiality, and that we respectfully require Your Honor's recusal in this matter. Although we are reluctant to raise this issue, after careful research and consultation, we have concluded that, as a matter of professional responsibility, we have no choice but to pursue the matter, initially by calling the issue to the attention of the parties and the Court. "  Mr. Arffa was one of three Paul Weiss attorneys handling the Second Department appeal in 2009, along with McGlinchey Stafford in Albany.  The Dec. 6 letter does not specify the judge's "commercial relationship" with the bank. Mr. Arffa referred questions to his client OneWest, which declined to comment.  In any case, it is unclear whether Justice Spinner was required to recuse himself if his mortgage was the relationship to which Mr. Arffa was referring.  Under Section 100.3(E)(1) of the Rules of the Chief Administrative Judge, judges must disqualify themselves "in a proceeding in which the judge's impartiality might reasonably be questioned."  Under §100.3(E)(1)(c), one of those instances includes where "the judge knows that he or she, individually or as a fiduciary, or the judge's spouse or minor child residing in the judge's household has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other interest that could be substantially affected by the proceeding."  Here, there is no indication that the judge has an economic interest in the Yano-Horoski house or that his own mortgage could have been affected by his actions in the case.  With foreclosure cases flooding the courts in recent years, several decisions by Justice Spinner—including the Yano-Horoski ruling—have gained media attention. Lenders have taken notice too, apparently deciding against sending junior associates to handle cases before the judge (NYLJ, July 15, 2010).  Nevertheless, Mr. Young said Justice Spinner was "quite capable" of fairly handling each case.  "There is no doubt in my mind that he could be fair and impartial. If you look at his record, he decided against banks and with banks," Mr. Young said.  The case has been reassigned to Suffolk County Supreme Court Justice Jerry Garguilo (See Profile) and next court date is scheduled for Jan. 12.  Meanwhile, Mr. Young has raised new claims in an effort to allow the Yano-Horoskis to stay in their home.

Firm Accused of Deception

In October court papers, Mr. Young contended the January 2009 default judgment of foreclosure against his clients had to be vacated due to the lack of personal service and the "extrinsic fraud" committed by the lender and Steven J. Baum P.C., its counsel before Paul Weiss entered the case.  In one "instance of deception," Ms. Yano-Horoski's husband, Gregory, allegedly contacted Mr. Baum after the complaint was served.  Mr. Baum, according to the defendant's filings, told the husband it was not necessary to file an answer because the foreclosure would be dismissed if a modification could be achieved or the outstanding balance was paid. Mr. Baum also allegedly told him the homeowners had time to make the mortgage current.  In a second incident, Ms. Yano-Horoski claims she spoke with an unnamed woman lawyer at the Baum firm three days after her bankruptcy petition had been dismissed.  The attorney allegedly told Ms. Yano-Horoski it was too late to file an answer. The homeowner's court papers, however, argue the bankruptcy triggered an automatic stay of the foreclosure and the Baum firm misrepresented that fact in filings to obtain the foreclosure.  Mr. Young also argued the foreclosure action was fatally flawed owing to standing deficiencies; the plaintiff lender did not own the mortgage and note; and "true and obvious discrepancies" existed between the mortgage and note filed with the clerks' office, the court and given to the defense, the attorney said.  Mr. Young's motion seeks the caption be amended to include Deutsche Bank, in its capacity as a trustee of a particular home equity mortgage loan asset-backed trust.  In court papers, Mr. Arffa rejected Ms. Yano-Horoski's motion as "palpably deficient."  He rejected claims of improper service and said extrinsic fraud allegations were insufficient and unsupportable. In affirmations, Mr. Baum and the two attorneys at the firm who handled the case said they never spoke with either Mr. Horoski or Ms. Yano-Horoski.  Once the largest foreclosure law firm in New York, the Baum firm has been heavily criticized for its practices and recently announced that it was shutting down. Mr. Baum declined to comment on the litigation for this article. Mr. Arffa called the lack of standing claims "unfounded speculation as to the 'true' owner of the note and mortgage relating to the loan that fails to furnish competent evidence of any meritorious defense."  Noting in court papers that during the course of the action OneWest has paid approximately $160,000 in principal and interest, plus $64,000 in insurance and taxes, Mr. Arffa said, "Having lived in her home for free for the past five years and more, it is more than time for defendants to cease trying to postpone the inevitable. If ever a borrower in a foreclosure proceeding had her day in court, Ms. Yano-Horoski is that borrower." Andrew Keshner can be contacted at akeshner@alm.com.

Corrupt Tembeckjian Goons To Hold Judicial "Ethics" Hearings

Come to the Show at 61 Broadway (12th floor) on Wednesday, December 14, 2011.  See How Even NYS Judges Get Denied Due Process in the Make-Believe "Ethics" World of The Empire State. 

Disciplinary Proceedings to Resume Against Judge
The New York Law Journal by Brendan Pierson - December 9, 2011

Disciplinary proceedings against Bronx Surrogate Lee L. Holzman will resume next week [Wednesday, December 14, 2011] following an order by an Appellate Division, First Department, panel denying his request for a stay (NYLJ, Dec. 7). The proceedings, which will be open to the public at Surrogate Holzman's request, are set to take place Dec. 14 through 16, Dec. 19, Jan. 3 through 6 and Jan. 9 through 13.  The Commission on Judicial Conduct alleges that Surrogate Holzman allowed Michael Lippman, a former counsel to the Bronx public administrator, to collect $300,000 in excessive fees. Surrogate Holzman became the chairman of the Administrative Board of the Offices of the Public Administrators, which is charged with approving fees for public administrators' counsel, in 2002. He eventually fired Mr. Lippman in 2006. Mr. Lippman was indicted last year for allegedly collecting excess fees in five cases and is facing criminal charges in the Bronx. Surrogate Holzman had asked the First Department to stay the disciplinary case against him until Mr. Lippman's criminal case was resolved.

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Lying Lawyer Slammed

Lying lawyer slapped
The New York Post by Dareh Gregorian  -  December 10, 2011

A Queens lawyer has been suspended for six months for falsely accusing a New Jersey state trooper of using anti-Semitic slurs against him, according to a ruling released yesterday.  Attorney Elliott Dear said he made up the outrageous allegations in hopes of getting out of a speeding ticket. Court papers say the unidentified trooper pulled over Dear, an orthodox Jew, for going 84 in a 55-mph zone while driving with his wife in 2007.  Six days after getting the ticket, Dear sent a letter to the traffic court saying, “This ticket shall be dismissed immediately” since he wasn’t speeding and “the officer called me a ‘Jew kike’ — and this prejudice obviously was the cause for the ticket,” the papers say. The letter was forwarded to Internal Affairs, which contacted Dear, who repeated that he had been the victim of an ethnic slur. Unfortunately for Dear — and luckily for the trooper — the traffic stop had been videotaped on the officer’s car camera, and the trooper was wearing a recording device. Police reported Dear’s actions to the New York state lawyers’ disciplinary committee. In a ruling made public yesterday, a panel of state Appellate Division judges denied Dear’s request for only a private rebuke, and suspended him for six months.

-----RELATED STORY:
Lawyer Is Suspended for Making False Accusations Against N.J. Trooper
The New York Law Journal by Andrew Keshner  -  December 12, 2011

A Queens attorney who sought to get out of a speeding ticket by lying that a police officer had called him a "jew kike" has been suspended for six months.  "[R]espondent cavalierly attributed anti-Semitic slurs to an innocent person in a manner which could have had devastating consequences to that person's career," the Appellate Division, First Department wrote in Matter of Eliott Dear, M-4742. "This act alone warrants a harsh sanction, not to mention that it was done to gain an advantage in an administrative proceeding."  The penalty stems from a July 2007 traffic stop during which Eliott Dear, then 29, was given a summons from a New Jersey State Trooper for driving 84 mph in a 55 mph zone. Six days later, Mr. Dear, an orthodox Jew, wrote a letter to the traffic court on the letterhead of a law firm where he then worked as an associate insisting that the officer had made the anti-Semitic remark. Mr. Dear, who identified himself as "a licensed attorney in NY State," insisted that he had not been speeding and that the officer's "prejudice obviously was the cause for the ticket."  Mr. Dear did not appear for his August 2007 traffic court hearing date and a contempt of court warrant was issued. The "bail" was set at $265, which was the fine for the speeding violation.  Mr. Dear's allegation spurred an internal probe of the officer. After avoiding calls for two months, Mr. Dear finally spoke with an investigator from the state police.  According to the First Department, he "equivocated" but after he was pressed to remember if a slur was used he explained that since he wrote the letter near the time of the incident, it was likely that the trooper said it.  Mr. Dear told the investigator that the trooper had rejected his explanation for speeding that his pregnant wife needed a bathroom as "more baloney from 'you guys,' which [Mr. Dear] stated referred to orthodox Jews." Finally, Mr. Dear said that the trooper had shown a "demeaning" attitude toward him and his wife.  But none of Mr. Dear's allegations was supported by the recordings from the microphone the officer was wearing during the traffic stop or the videotape from his car. The officer was exonerated in April 2008.  The New Jersey State Police filed a complaint against Mr. Dear with the First Department Disciplinary Committee. Mr. Dear paid the $265 speeding fine in September 2008.

In a June 2009 deposition, Mr. Dear said it was an "impulsive and emotional" decision to write the letter. At the deposition, he said he did not mean to hurt the trooper and thought nothing would come of the allegation.  By the time an investigator interviewed Mr. Dear, he explained he was sticking to his story because he was worried about being charged with perjury.  When the disciplinary committee served Mr. Dear with a notice and statement of five charges, he admitted all five.  Mr. Dear offered testimony to a referee from his psychiatrist that the attorney suffered from "borderline personality disorder, generalized anxiety disorder, attention deficit disorder, major depression, and narcissistic personality."  The conditions made Mr. Dear more prone to "bad decisions," the psychiatrist explained, adding that at the time of the incident, Mr. Dear was working too much at a job he did not like and experiencing difficulties with his marriage and the eldest of his three children.  The referee determined Mr. Dear's letter was an aberration that was worsened by his ensuing interview with an investigator. The referee also added that he believed Mr. Dear did not intend to harm the officer by his actions.  The disciplinary committee initially called for a two-year suspension for Mr. Dear. But the committee later modified its stance and recommended six months.  The hearing panel recommended confirmation of the referee's determinations and also supported a six-month suspension.  Mr. Dear, a Fordham University School of Law graduate who was admitted to the bar in 2005, is now a solo practitioner in Forest Hills.  Mr. Dear sought a private reprimand or censure from the appellate panel. But the panel confirmed the hearing panel's six-month sanction.  "Notwithstanding the mitigating evidence and respondent's apparently sincere remorse, his behavior was reckless and reflects poorly on the bar. Under the circumstances, censure or admonition is simply too lenient a penalty," the panel wrote in its Dec. 8 decision.  His suspension is effective Jan. 7, 2012. The panel consisted of Presiding Justice Luis A. Gonzalez and Justices Angela M. Mazzarelli, Richard T. Andrias, Rosalyn H. Richter and Sheila Abdus-Salaam.  Scott Smith represented the departmental disciplinary committee.  Mr. Dear was represented by Elana L. Yeger, a solo practitioner in Spring Valley.  "Obviously, we are disappointed he was suspended at all," Ms. Yeger said in an interview. But she emphasized that it was a quarter of the two-year suspension that the disciplinary committee had initially requested.  She stressed that Mr. Dear was sorry for his actions and accepted full responsibility.  Andrew Keshner can be reached at akeshner@alm.com.

-----ATTORNEY ETHICS COMMITTEE DECISION:

Matter of Dear
2011 NY Slip Op 08840  -  Decided on December 8, 2011
Appellate Division, First Department  -  Per Curiam
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 8, 2011
SUPREME COURT, APPELLATE DIVISION
First Judicial Department  -   Luis A. Gonzalez, Presiding Justice; Angela M. Mazzarelli, Richard T. Andrias, Rosalyn H. Richter, Sheila Abdus-Salaam - Justices

In the Matter of Eliott Dear, an attorney and counselor-at-law: Departmental Disciplinary Committee for the First Judicial Department, Petitioner, Eliott Dear, Respondent.

Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department. Respondent, Eliott Dear, was admitted to the Bar of the State of New York at a Term of the Appellate Division of the Supreme Court for the Third Judicial Department on June 28, 2005.

Jorge Dopico, Chief Counsel, Departmental -Disciplinary Committee, New York  -  (Scott D. Smith, of counsel), for petitioner. Elana L. Yeger, for respondent.  M-4742 (October 22, 2010) IN THE MATTER OF ELIOTT DEAR, AN ATTORNEY - PER CURIAM

Respondent Eliott Dear was admitted to the practice of law in the State of New York by the Third Judicial Department on June 28, 2005. At all times relevant to this proceeding, respondent maintained an office for the practice of law within the First Judicial Department. He currently maintains a law office in Queens.  The Departmental Disciplinary Committee now seeks an order pursuant to 22 NYCRR 605.15(e), confirming findings of misconduct by the Hearing Panel, and imposing a sanction of no less than six months.  This disciplinary proceeding arises out of a traffic stop which occurred in New Jersey on July 5, 2007. Respondent, who is an orthodox Jew, was stopped for speeding by a New Jersey State Trooper and given a summons for going 84 mph in a 55 mph zone. Unbeknownst to respondent and his wife, who was in the passenger seat, the stop was videotaped from a camera in the trooper's car. Further, a microphone on the trooper's uniform recorded everything that the trooper said, although it did not capture respondent's statements.  Six days after receiving the speeding ticket, respondent wrote the following letter to the traffic court on the letterhead of the law firm where he worked as an associate:

"Ladies and Gentlemen:  This ticket shall be dismissed immediately since -
a. there was no speeding and the officer refused to show me evidence that there was: (i.e. - "not guilty")
b. even if there was speeding (which there wasn't) - I was in a 65-mph zone NOT a 55 mph zone; and
c. The officer called me a "jew kike" - and this prejudice obviously was the cause for the ticket. I am a licensed attorney in NY State and will be representing myself in this matter (contact details enclosed).  Eliot Dear  [signed] Eliot Dear Esq.  [business card attached]"

The traffic court set the matter down for a hearing and the letter was forwarded to the New Jersey State Police, which in turn referred it to Sgt. Alexander Koopalethes of the Internal Affairs Investigation Bureau for an investigation. Sgt. Koopalethes attempted to reach respondent by telephone for two months and, only after a partner at respondent's law firm directed respondent to return his call, did Koopalethes hear from him, and have an opportunity to conduct a telephone interview. In the meantime, in August 2007, respondent defaulted on his traffic court hearing date and a contempt of court warrant was issued against him with "bail" set at $265 (the fine for the violation).  During his telephone interview with Sgt. Koopalethes, which was recorded, respondent at first equivocated about whether the trooper directed an ethnic slur at him, but after he was pressed to remember if a slur was used, he explained that since he wrote the letter contemporaneously to the incident, it was likely that the trooper said it. The interview continued and respondent added that the trooper dismissed respondent's proffered explanation for speeding, namely, that his pregnant wife needed a bathroom, as more baloney from "you guys," which respondent stated referred to orthodox Jews. Respondent further recounted that the trooper displayed a demeaning attitude toward respondent and his wife. However, none of this information was supported by the video or audio recordings made during the traffic stop.  In April 2008, 10 months after the traffic stop, the internal investigation was completed and the trooper was exonerated of all charges. In July 2008, the New Jersey State Police filed a complaint against respondent with the Disciplinary Committee wherein it was revealed that the traffic stop had been recorded. In August 2008, respondent was advised of the complaint and in September 2008, more than one year later, he paid the $265 fine for the speeding violation.

In a letter-answer to the complaint dated January 29, 2009, prepared by respondent's then attorney, and also signed by respondent, respondent admitted that the trooper did not use any ethnic slurs and that he "exacerbated his mistake by not fully refuting [this] allegation ... during his telephonic interview" with Sgt. Koopalethes. However, respondent continued to criticize the trooper's "demeanor" during the traffic stop and the trooper's apparent insensitivity to his wife's "bathroom demands." The letter concluded with respondent accepting responsibility for making the false statement against the trooper and acknowledging his wrongdoing.  During his subsequent June 2009 deposition, respondent no longer attributed a demeaning attitude to the trooper. He explained that he wasn't trying to get back at the trooper, but that he just wanted the ticket dismissed. Respondent further stated that since he never filled out a formal complaint or form against the trooper, he never thought his writing that the trooper had used an ethnic slur would go anywhere except on a ticket processing pile, and that he had no logical reason for his decision to write the letter, just that it was "impulsive and emotional." Regarding the telephone interview with Sgt. Koopalethes, respondent testified that he knew he had lied and was in trouble, and he repeated the lie because he was concerned about possibly being charged with perjury.

The Departmental Disciplinary Committee served respondent with a notice and statement of five charges, and respondent admitted to all of thm. Accordingly, the Referee found that respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of DR 1-102(A)(4) by falsely alleging in a letter to New Jersey authorities that the trooper referred to him with an ethnic slur (charge 1), and by falsely alleging during the telephonic interview with Sgt. Koopalethes that during the traffic stop, the trooper referred to him and his wife as "you guys", which was meant to be indicative of the trooper's prejudice against Jewish people (charge 2). Respondent engaged in conduct that was prejudicial to the administration of justice in violation of DR 1-102(A)(5) by consciously avoiding the initial phone calls and letters from Sgt. Koopalethes for approximately two months (charge 3), and by failing to appear in court regarding the summons resulting in a contempt of court warrant being issued against him on August 16, 2007 (charge 4). Lastly, by engaging in the above described misconduct, including not retracting false statements when questioned by the N.J. Internal Affairs investigator, respondent engaged in conduct that adversely reflects on his fitness as a lawyer in violation of DR 1-102(A)(7) (charge 5).  In support of mitigation, respondent presented testimony from his treating psychiatrist, who diagnosed respondent as suffering from "borderline personality disorder, generalized anxiety disorder, attention deficit disorder, major depression, and narcissistic personality." He stated that at the time of the incident, respondent was experiencing a great amount of stress due to his working long hours at a job he did not like, marital tension, and substantial difficulties with respect to the oldest of his three children who, like respondent, suffered from ADHD. In the psychiatrist's opinion, the disorders that he diagnosed respondent having, combined with the aforementioned stress, "were the primary factors in making [respondent] vulnerable to impulsive acts." The psychiatrist changed respondent's medication and he, along with a psychologist specializing in dialectical behavioral therapy (DBT), recommended respondent undertake an intensive three-day-a-week outpatient DBT therapy regimen at the Columbia Day Program. Respondent completed a two-month program at Columbia while also seeing his psychiatrist twice a week.  The psychiatrist explained that respondent's disorders do not cause a person to lie but they make such individuals "more vulnerable to making bad decisions," such as lying, even though they realize what they are doing is wrong. He stated that people like respondent would know the potential implications of actions if they stopped to think about them, but "the problem is that they often don't stop to think and just do." Respondent also called three character witnesses, all of whom testified favorably about respondent's character, honesty and integrity.  The Referee found that while writing the letter was a single aberrational act, it was exacerbated by respondent's statements, required to be truthful, in his telephonic interview with Sgt. Koopalethes and by his perpetration of the theme of anti-Semitic behavior in his answer to the complaint. He further stated that he believed that respondent lacked the intent to harm the trooper, and credited respondent's psychiatrist's testimony that his accusation was an "impulsive" action even though six days had elapsed since he had received the ticket.

The Referee further stated that he believed that respondent was sincerely remorseful for the incident and that his apology to the trooper was genuine. The Referee accepted respondent's psychiatrist's opinion that respondent's personality disorders were legion and strong, and was persuaded that respondent's writing the charge that the trooper used an ethnic slur was impulsive. The Referee further asserted that, while perhaps not technically the "cause" of respondent's misconduct, his many personality disorders, exacerbated by the stress of his job, his marital problems and especially the problems of his oldest child, had a severe impact on his behavior. The Referee credited respondent for his devotion to therapy and continued attendance at therapy sessions, which appeared to be having a positive impact. The Referee observed that the trooper was not directly harmed by respondent's behavior, insofar as he was not disciplined, suspended, docked pay or benefits or even forced to hire a lawyer. On the other hand, he noted that the officer had nine months of emotional stress while the Internal Affairs investigation was ongoing and, though the disparate treatment claim against him was determined to be unfounded, the incident would be documented in his personnel file forever, which could affect or at least delay future consideration of a request for transfer or a promotion. Recognizing the financial hardship which a suspension would cause respondent, the Referee nevertheless recommended a six-month suspension.  In unanimously recommending confirmation of the Referee's findings of fact, conclusions of law and recommended sanction of a six-month suspension, the Hearing Panel found —- "the Respondent's conduct to be nothing short of outrageous. To have made entirely fictitious charges of religious bias against a state police officer simply to get out of a speeding ticket, and to maintain the truth of those charges in a follow-up official investigation without regard to the potentially negative impact on the career, livelihood, and emotional state of the police officer, demonstrated Respondent's complete lack of a moral compass and sound judgment.  In mitigation are the facts that Respondent has a short but unblemished record, was 29 years old at the time of the incident with severe financial and family stresses, is undergoing psychiatric treatment for his disorders with considerable success, cooperated with the Committee and appears genuinely remorseful for his conduct."  Although the Committee had initially sought a two-year suspension before the Referee, it now seeks an order pursuant to 22 NYCRR 603.4(d) confirming the findings of fact and conclusions of law of the Hearing Panel and suspending respondent for no less than six months. Respondent asks this Court to disaffirm the determination of the Hearing Panel and issue a private reprimand or, at most a censure.  We confirm the Hearing Panel's sanction. Respondent made false accusations, "which accusations were prejudicial to the administration of justice, engaged in conduct that adversely reflects on his fitness as an attorney, [and] asserted positions which served to harass and maliciously injure" (Matter of Aretakis, 57 AD3d 1160, 1161 [2008], appeal dismissed 11 NY3d 919 [2009] [one-year suspension where respondent, inter alia, falsely accused judge of criminal activity in making a recusal motion]). Indeed, even without the personal impugnation of a person's character as in this matter, this Court has suspended an attorney for resorting to falsehoods in an attempt to achieve a favorable outcome in an administrative proceeding [see Matter of Donofrio, 231 AD2d 365 [1997][one-year suspension where the respondent falsely informed the manager of the Parking Violations Bureau and an administrative law judge that his hearing needed to be expedited because his wife was in the hospital about to give birth and forged the ALJ's signature on a document stating that the respondent's summonses had been dismissed]).  Here, respondent cavalierly attributed anti-Semitic slurs to an innocent person in a manner which could have had devastating consequences to that person's career. This act alone warrants a harsh sanction, not to mention that it was done to gain an advantage in an administrative proceeding. Notwithstanding the mitigating evidence and respondent's apparently sincere remorse, his behavior was reckless and reflects poorly on the bar. Under the circumstances, censure or admonition is simply too lenient a penalty.  Accordingly, the Committee's petition should be granted to the extent of confirming the Hearing Panel's determination as confirmed the Referee's findings of fact and conclusions of law, and, effective 30 days from the date hereof, respondent is suspended from the practice of law for a period of six months, and until further order of this Court.
All concur.  Order filed.  (December 8, 2011) Gonzalez, P.J., Mazzarelli, Andrias, Richter, and Abdus-Salaam, JJ.