New York lawyer suspended for lying to law firm about brief filings and drafting fake brief and e-mails to support false statements

Hello everyone and welcome to this Ethics Alert which will discuss the recent suspension of a New York law firm associate lawyer who lied about filing briefs and drafted a fake brief and created false e-mails to support his false statements.  The disciplinary opinion is: Matter of McCoobery, 2019 NY Slip Op 00843, Appellate Division, First Department (2/5/18).  The link to the opinion is here:  http://www.nycourts.gov/reporter/3dseries/2019/2019_00843.htm

According to the opinion, in one matter, a firm partner asked the lawyer to draft an appellate opposition brief.  The lawyer wrote and filed the brief without providing it to the partner for review and, when the partner asked to see a draft, the lawyer provided the filed brief to the partner and falsely stated that it was a draft. The partner made revisions to the brief and later discovered that the brief had already been filed.

In the other matter, the partner told the lawyer to send an appellate brief and the record on appeal to the law firm’s printing vendor and to instruct the vendor to serve and file the documents. The lawyer sent the brief and documents to the vendor, but failed to ask for service and filing.

The lawyer also falsely told the partner that he had given the instructions to the vendor and, to cover up the false statements, the lawyer falsely told the partner that he and the opposing counsel had stipulated to an extension for filing the brief.  The lawyer also fabricated an opposition brief and provided it to the partner and falsified e-mails to make it appear that he had received the brief from opposing counsel. As a result, the partner drafted a reply brief.

The opinion further states that the lawyer:

“falsely told the partner that the client’s appeal was calendared for this Court’s June 2017 term. On May 1, 2017, when this Court released its June 2017 calendar, the client’s appeal was not on it.  After noticing the appeal had not been calendared, the partner told respondent he was going to call opposing counsel to find out why the appeal had not been calendared.  Respondent then admitted to the partner that he failed to inform the printing vendor to serve and file the subject documents and admitted his deceptions. On May 2, 2017, respondent tendered his resignation from the firm.”

The lawyer stipulated to the facts and consented to a 3 month suspension.  The opinion stated that the lawyer’s misconduct occurred while he was dealing with his father’s terminal illness and death, he had no previous discipline in more than 20 years of practicing law, and no clients suffered “irreparable” harm.

Bottom line:  In this case, an associate lawyer at a law firm filed a brief without a partner’s review and lied about it, failed to insure that another brief was filed and lied about that, and then drafted a fake brief and falsified e-mails to cover up his misconduct.   Although the opinion states that there was no “irreparable” harm to any clients, I do not know how the failure to file a brief would not result in “irreparable” client harm.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

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About jcorsmeier

Joseph A. Corsmeier is an “AV” rated attorney practicing in Clearwater, Florida. He concentrates his practice primarily in the areas of defense of attorney disciplinary matters before The Florida Bar, attorney admission matters before the Florida Board of Bar Examiners, and professional license and disciplinary matters before the Boards of the State of Florida. He provides expert analysis and opinion on conflict of interest and other attorney disqualification and legal malpractice issues and he testified as an expert in the Florida courts. He served as an Assistant State Attorney in the Sixth Judicial Circuit from 1986 to 1990 where he prosecuted felonies exclusively from June 1987, and as Bar Counsel for The Florida Bar’s Department of Lawyer Regulation from 1990 to 1998. He also practices in the areas of estate planning and Medicaid qualification, workers’ compensation, and labor law. Mr. Corsmeier is the author of numerous articles for various bar publications, has spoken at numerous local and statewide seminars on various topics, including ethics and professionalism, and was an instructor of legal ethics for paralegals at Rollins College until the Tampa campus closed. He received his undergraduate degree from Florida State University and his J.D. from Mercer University. He is admitted to practice in all Florida Courts, the Supreme Court of the United States, the United States Court of Appeals for the Eleventh Circuit, and the Middle District of Florida. He is a member of The Florida Bar, American Bar Association, the Association of Professional Responsibility Lawyers, and the Clearwater and St. Petersburg Bar Associations.
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