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New York Suspends A Lawyer Who Agreed to Help A Client Sue HIs Employer for Legal Malpractice

MATTER OF NOVINS, 2014 NY Slip Op 3465 – NY: Appellate Div., 1st Dept. 2014 – Google Scholar.

Some of the facts set forth in ethics cases are almost impossible to believe. This is one such case where an associate of a law firm agreed to assist a former client with a legal malpractice case against his employer.

After a personal injury case was lost, and the client threatened to sue the firm for legal malpractice, an associate of the law firm contacted the aggrieved client and negotiated a written contingency fee agreement with the aggrieved client.

The court recites the facts of the “agreement” as follows; “On January 12, 2008, while the motion for leave to appeal to the Court of Appeals was pending, respondent and Bernardini met in a restaurant and signed a “Personal Services Agreement” (the Agreement) under which Bernardini agreed to “give” respondent 45% of any net recovery he received relating to the Villarini incident. This included the personal injury action and a legal malpractice claim to be brought against the Ginarte firm “for negligently failing to timely serve … Villarini, …, for neglecting to work on [the] case over the many years, for failing to take the deposition of … Villarini, for having failed to obtain a copy of … Villarini’s…. Personnel File in a timely manner and for failing to bring a Motion …, for spoliation of this key evidence.” Although the Agreement, which respondent drafted, did not specify the services that he was to provide, respondent acknowledges that he agreed to serve as a witness for Bernardini in the malpractice action against his employer.

Respondent contends that Bernardini raised the subject of additional compensation, and that they negotiated the 45% fee to compensate respondent for his extraordinary efforts in the personal injury action and for his willingness to assist Bernardini in pursuing the malpractice claim, which would require him to leave the Ginarte firm. Bernardini asserts that he never expressed a desire to compensate respondent beyond what was in his retainer agreement with the Ginarte firm, and that he and respondent did not have any prior discussions regarding the Agreement. Rather, respondent produced the Agreement at the meeting and asked Bernardini to sign it, telling him that he had notes and documents that would prove the malpractice claim. Respondent later provided Bernardini with a list of malpractice attorneys and concealed the Agreement from the Ginarte firm.”

The opinion recites the facts and contains this summary:

“In a report dated August 23, 2013, a Hearing Panel (Panel) unanimously recommended charges one through four and six be sustained, and that charge five be dismissed for insufficient evidence. The Panel found it troubling that respondent sought to charge Bernardini a contingency fee equal to 45% of net recovery for work on the personal injury case that he had already been paid for by the Ginarte firm, and for providing Bernardini with documents and testimony to assist him in the malpractice case, which testimony, if relevant, he would have been required to give without compensation. The Panel also found that respondent “should have recognized both that Bernardini was the firm’s client (not his client individually) and that he owed a duty of loyalty to both Bernardini and the Ginarte firm,” and that respondent perpetuated his misconduct for 15 months through his harassing and threatening phone calls. As to the sanction, a majority of the Panel recommended that respondent be suspended from the practice of law for one year.”

I am surprised that the suspension was only for one year. Here the lawyer was really attempting (in my opinion) to shake down the firm’s former client whose case had been lost. The lawyer even went to the extreme of creating a written agreement that was not in the client’s interest or his interest.  This is one case where the sanction was insufficient.

Edward X. Clinton, Jr.

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