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Hearings were held before the Special Referee …cont

This Count concerned false statements made by personal injury respondent in his affidavit dated March 8, 1982, which respondent prepared, swore and caused to be filed in the action in response to the post-trial motion concerning the discovery of the unauthorized exhibit in the jury room. Specifically, respondent was charged with swearing to facts, to wit, that his partner was responsible for sending the unauthorized exhibit into the jury room, about which he had no personal knowledge or factual basis, direct or indirect. Thus, it was alleged that respondent violated DR1-102(A)(5) (engaging in conduct prejudicial to the administration of justice); DR1-102(A)(6) (engaging in conduct that adversely reflects on his fitness to practice law) and DR7-106(C)(1) (stating or alluding to any matter that he has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence).

The essential elements of Count Two, except for slight modification, are word-for-word identical to the second charge issued by the Federal Grievance Committee to which respondent admitted and for which he was sanctioned. Relying on that admission by respondent, the Special Referee sustained Count Two.

Finally, respondent’s argument that the application of the fair preponderance of evidence standard of proof in attorney disciplinary proceedings violates his due process rights under the United States and New York State Constitutions has been rejected by the New York Court of Appeals. That Court has conclusively determined that the standard of proof in attorney disciplinary proceedings is a fair preponderance of the evidence. Of course, there is no requirement of a criminal conviction to sustain a charge in an attorney disciplinary proceeding. While respondent argues that the clear and convincing evidence standard should be adopted by this Court he has set forth no valid reason why this Court should entertain a change of the law in New York and apply a different standard.

The sanction of suspension from the practice of law for a period of two years recommended by the Special Referee is far too lenient given the serious violations of the Code of Professional Responsibility involved, which as the Special Referee noted, go to the heart of the ethical responsibility of a practicing lawyer. Respondent’s violations include several acts of intentional dishonesty, including the filing of a knowingly false and misleading affidavit, the giving of false testimony at a hearing before then Southern District Judge and the solicitation of false testimony from a fact witness.

Any one of these many serious bite violations would be ground for removal of respondent from the roll of attorneys. The fact that there were many discrete acts of misconduct leads ineluctably to the conclusion that the only just punishment for respondent must be disbarment. As we noted over seventy years ago, false testimony, even if not technical perjury, and the making of false affidavits should result in disbarment. “The giving of false testimony strikes at the very heart of the judicial system. That an officer of the court should countenance it in another is intolerable. That he should himself be guilty of such an offense against good morals and the public weal is not to be condoned. By such conduct he has forfeited the confidence of the court and his right to its continued certificate of good character and integrity”.

In a similar case, in which we disbarred an attorney, we noted: “The concededly false answers given and respondent’s lack of candor, whether technically perjurious or not, breached the standards of professional ethics. In the instant case, respondent was found to have lied at a hearing held by a judge of the Federal Court and to have submitted a knowingly false affidavit which unfairly and reprehensibly cast his own guilt upon a blameless fellow member of the bar. In addition, respondent, inter alia, solicited and requested a witness to give false testimony at a trial and stood by when another witness gave material false testimony which respondent knew to be false without revealing the fraud to the court or the parties.

These acts constitute a pattern of conduct by respondent which demonstrate contempt for the legal and judicial process as well as for the profession. “One need not be a lawyer to recognize the impropriety of such conduct. For an attorney practicing for nearly 40 years in this State, such misconduct is inexcusable, notwithstanding an impressive array of character witnesses who testified in mitigation”.

In view of these serious acts of misconduct which had the effect of perverting the administration of justice, we reject the recommended suspension of respondent and find that disbarment of the respondent is the only proper punishment. The violations of the canons of ethics by the respondent were not simply inadvertent or solitary peccadillos. They consisted of a pattern of professional misconduct persisted in as a course of conduct for at least several years. For this Court to impose any other sanction would ignore our responsibility to the legal profession and the public.
Accordingly, the Disciplinary Committee’s petition to confirm the Special Referee’s report is granted to the extent that the findings of the Special Referee sustaining counts 2, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 16 and 17 are confirmed; the Special Referee’s finding with respect to count 3, as well as the recommended sanction of suspension for a period of two years are disaffirmed. Respondent’s cross-motion for an order disaffirming the Special Referee’s report as it relates to the findings of misconduct against respondent is granted only to the extent of disaffirming the finding as to Count 3 and in all other respects respondent’s cross-motion is denied. Respondent is disbarred and his name ordered stricken from the roll of attorneys in the State of New York.

The application is granted to the extent that the findings of the Special Referee sustaining counts 2, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 16 and 17 are confirmed; the Special Referee’s finding with respect to count 3, as well as the recommended sanction of suspension for a period of two years are disaffirmed; respondent’s cross-motion for an order disaffirming the Special Referee’s report as it relates to the findings of misconduct against respondent is granted only to the extent of disaffirming the finding as to Count 3 and in all other respects respondent’s cross-motion is denied; and respondent is disbarred and his name ordered stricken from the roll of attorneys and counselors-at-law in the State of New York all effective April 22, 1994.

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