Posted by: Patricia Salkin | July 24, 2014

NY Appellate Court Censures Attorney for Failure to File Claim in Zoning Dispute

Attorney Shane was admitted to the practice of law in 1959. The Grievance Committee of New York filed a petition alleging that, in 1986, respondent neglected a client matter and, for approximately 25 years deceived the client regarding the status of that matter. Based on the stipulation, in 1986, attorney Shane agreed to represent a client on a contingent fee basis to recover damages from a municipality on the ground that the municipality had enacted certain zoning regulations that reduced the value of a business owned by the client. The Referee found that, in July 1986, respondent falsely informed the client that papers had been served on the municipality. The Referee further found that, from 1986 through 2012, respondent on falsely stated to the client that respondent was prosecuting the matter, and respondent bolstered those misrepresentations with several false documents, including a purported court order and notice of appeal. Various false reasons for the substantial delay in concluding the purported matter were given. In July 2012, respondent informed the client that respondent had never filed suit.

The Appellate Division confirmed the factual findings and concluded that the attorney violated the following former Disciplinary Rules of the Code of Professional Responsibility and the following Rules of Professional Conduct:
DR 1-102 (a) (4) (22 NYCRR 1200.3 [a] [4]) and rule 8.4 (c) of the Rules of Professional Conduct (22 NYCRR 1200.0)—engaging in conduct involving dishonesty, fraud, deceit or misrepresentation;
DR 1-102 (a) (5) (22 NYCRR 1200.3 [a] [5]) and rule 8.4 (d) of the Rules of Professional Conduct (22 NYCRR 1200.0)—engaging in conduct that is prejudicial to the administration of justice; and
DR 1-102 (a) (7) (22 NYCRR 1200.3 [a] [7]) and rule 8.4 (h) of the Rules of Professional Conduct (22 NYCRR 1200.0)—engaging in conduct that adversely reflects on his fitness as a lawyer.

Further, prior to April 1, 2009, the attorney violated the following former Disciplinary Rules of the Code of Professional Responsibility:
DR 1-102 (a) (3) (22 NYCRR 1200.3 [a] [3])—engaging in illegal conduct that adversely reflects on his honesty, trustworthiness or fitness as a lawyer;
DR 6-101 (a) (3) (22 NYCRR 1200.30 [a] [3])—neglecting a legal matter entrusted to him; and
DR 7-101 (a) (2) (22 NYCRR 1200.32 [a] [2])—intentionally failing to carry out a contract of employment entered into with a client for professional services.

In determining an appropriate sanction, the court considered the attorney’s otherwise unblemished record after more than 50 years in the practice of law. Additionally, that the attorney did not commit the misconduct for personal gain or profit, and that the attorney self-reported the misconduct to the client and expressed remorse. Further, there were numerous letters of support by individuals attesting to respondent’s good character and standing in the community. Also, there was no proof that the client suffered a financial loss as a result of respondent’s misconduct. It appeared that the attorney was avoiding advising the client that he believed that the proposed claims against the municipality lacked merit. The attorney also fully cooperated with the Grievance Committee’s investigation. After consideration of all of the factors the court concluded that the attorney should be censured.

In re Shane, 117 AD3d 117 (4 Dept 4/11/2014)


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