A Bronx Estate Litigation Lawyer said that, respondent was admitted to the practice of law in New York by the First Judicial Department on April 1, 1957. At all times relevant herein respondent has maintained an office for the practice of law within the First Judicial Department. Respondent was served with a Notice and Statement of Charges which allege twenty-three separate counts of professional misconduct stretching over a decade and arising out of respondent’s representation of personal injury claimants in three separate matters.
Hearings were held before the Special Referee on twenty-six days commencing on July 1, 1990 and ending on May 22, 1992. The transcript of the proceedings runs over 5,000 pages. Thirty witnesses testified, including two preeminent ethics experts (one for each side). During the course of the hearings the following facts were adduced and conclusions reached.
Respondent represented the plaintiff in a wrongful death action arising out of a ship collision in which her husband, lost his life. The respondent was assisted in this matter by his then partner. The trial took place before the United States District Court for the Southern District of New York in late 1981 and early 1982. During the trial, a report by an expert called by respondent was marked for identification, as PX-337(B). Judge would not allow PX-337(B) in evidence, but ruled that the respondent could use it argumentatively in his summation. After the injury jury commenced their deliberation a note was received from them requesting the trial exhibits. The trial court instructed the exhibits in evidence be collected and delivered to the jury and repeated the admonition about Exhibit 337(B) which was used in summation but was not in evidence in chief. Thereafter, the jury returned a verdict in favor of the plaintiff and shortly after the announcement of the jury’s verdict, it was discovered that PX-337(B) had been given to the jury. Respondent thereafter submitted an affidavit, sworn to March 8, 1982, in which he placed the entire responsibility for sending PX-337(B) to the jury room on his co-counsel. Respondent stated that he had sent the exhibit into the jury room, in the mistaken belief that it was part of the evidence received. Respondent, however, made no effort to communicate with him before submitting this affidavit, casting the blame on him, and no affidavit was submitted by him, who was abroad from March 7 to March 17, 1982 and who knew nothing of respondent’s affidavit at that time.
After a hearing, in an opinion dated December 3, 1982, the Judge found respondent to have engaged in the “willful misconduct of tampering with the evidence transmitted to the deliberating jury.” Judge stated that respondent had “surreptitiously included among the exhibits to be sent to the jury an exhibit marked for identification that he well knew had not been received in evidence.” Judge concluded that when the jurors were deliberating and asked for all evidence in the case, respondent caused the exhibit to be sent to them “intentionally and with full awareness that it was in violation of the court’s order and rulings as to the receipt of the exhibit.” Judge rendered an opinion that based upon the transcripts respondent had lied during the hearing claiming that he had left the courtroom for lunch and had entrusted his co-counsel, to handle the exhibits that were sent to the jury.
Pursuant to a letter of complaint from the Judge, four separate accident charges were filed against respondent in a Federal Disciplinary Proceeding. Thereafter, at the Federal disciplinary hearing on January 9, 1985, respondent, pursuant to a plea bargain agreement, admitted the second charge, namely that he prepared, swore and caused to be served an affidavit without personal knowledge of the facts therein, in exchange for dismissal of the other federal disciplinary charges. On November 4, 1985, the Committee on Grievances of the Southern District recommended a sanction that a formal letter of reprimand be issued to respondent and that this letter be made a matter of public record. A subsequent letter of censure was written and distributed by the Judge, Chairman of the Committee on Grievances on June 23, 1986.
Thereafter, the Departmental Disciplinary Committee filed a petition in this Court seeking the imposition of reciprocal discipline pursuant to 22 N.Y.C.R.R. § 603.3. Respondent objected to the imposition of discipline greater than that imposed by the federal disciplinary committee. By order entered February 20, 1987, this Court denied the Committee’s petition and directed that the matter be referred to the Departmental Disciplinary Committee “for investigation and hearings, if necessary, as to all the issues raised.”
The essential elements of Count One are that respondent intentionally caused to be placed into the jury room, during deliberations, an exhibit (PX-337B) when he knew that same had not been received in evidence, and the placing of said exhibit was done with full awareness that it was in violation of the Court’s order and ruling as to the receipt of the exhibit in evidence. Viewing all of the evidence under a “fair preponderance” standard, the Special Motorcycle Referee found that the Committee had failed to establish that respondent intentionally sent exhibit 337(B) to the jury room. As such, Count One was not sustained.
To Be Cont…
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