In re Boter

46 A.D.3d 1, 842 N.Y.S.2d 411
CourtAppellate Division of the Supreme Court of the State of New York
DecidedSeptember 25, 2007
StatusPublished
Cited by11 cases

This text of 46 A.D.3d 1 (In re Boter) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Boter, 46 A.D.3d 1, 842 N.Y.S.2d 411 (N.Y. Ct. App. 2007).

Opinion

OPINION OF THE COURT

Per Curiam.

Respondent Richard Boter was admitted to the practice of law in the State of New York by the First Judicial Department on December 11, 2000. At all times relevant to these proceedings, respondent maintained an office for the practice of law within the First Judicial Department.

There are two unrelated disciplinary proceedings pending against respondent. The first is a “serious crime” proceeding commenced in July 2005 as a result of respondent’s guilty plea to a misdemeanor involving his unlawful solicitation of busi[3]*3ness. The second proceeding involves 51 charges of professional misconduct filed against respondent in November 2005 involving six clients. Before hearings could be completed with respect to each of those proceedings, we granted the Committee’s motion seeking respondent’s immediate suspension based upon his noncooperation with its investigation and admissions of professional misconduct regarding his IOLA account (Matter of Boter, 27 AD3d 137 [2006]). Although respondent admitted to 34 of the 51 charges, hearings were held before a Referee and a Hearing Panel. Both reports sustained all charges and recommended disbarment.

The Committee seeks an order, pursuant to 22 NYCRR 603.4 (d) and 605.15 (e), confirming the findings of fact and conclusions of law set forth in the Hearing Panel’s determination and the Referee’s report, on both the “serious crime” and formal charges proceedings, and entering an order of disbarment against respondent. Respondent has defaulted on the motion.

The “Serious Crime” Proceeding

On June 13, 2005, respondent pleaded guilty to a violation of Judiciary Law § 482, an unclassified misdemeanor. This plea arose out of his unlawful employment of a person, not an attorney, for the purpose of soliciting or abetting solicitation of clients from hospital clerks.

By order entered September 7, 2005, we deemed respondent’s offense a “serious crime” and directed a hearing be held on the appropriate sanction to be imposed.

The Hearing Panel conducted an evidentiary hearing on this matter on December 5, 2005. Its report, dated December 8, 2006, concluded that during his plea allocution, respondent admitted that from March 8, 2004 through May 21, 2004, he unlawfully employed a person for the purpose of soliciting or aiding or assisting or abetting solicitation of illegal business. Additionally, the Panel found that commencing in June 2002 and continuing through his arrest in late November 2004, respondent paid Rafael Flores, a nonlawyer who was active in the El Salvadoran community on Long Island, to refer personal injury clients to him in exchange for payment of approximately $1,000 per referral, either to Flores directly or to one of his companies. These payments totaled between $100,000 and $150,000, which respondent deducted for tax purposes from his office revenues as business or public relations expenses. As of the date of the hearing, respondent had not amended his tax returns to eliminate those improper deductions. Although re[4]*4spondent objected to the Panel’s consideration of factors beyond the three-month time period that covered his plea allocution, the Panel properly considered the entire course of his misconduct leading to his guilty plea (Matter of Rotter, 241 AD2d 81, 83 [1998]).

In determining the appropriate sanction, the Panel noted in aggravation that although respondent testified he knew at the time that his actions were illegal and wrong, he displayed no remorse and seemed insensitive to interests of and risks to bis clients, and he considered personal injury law to be a competitive “business” to be expanded through referrals, with clients treated as commodities. The Panel found his testimony lacking in candor on several issues, particularly on the issue of his falsification of retainer statements filed with the Office of Court Administration (OCA) to conceal his solicitation relationship with Flores. The Panel noted that respondent failed to provide any evidence in mitigation.

On the issue of the appropriate sanction to impose, the Panel determined that respondent’s “pattern” of misconduct and deception, “exacerbated by Respondent’s apparent lack of remorse, failure to appreciate the gravity of his offenses and failure to present any mitigating evidence” justified a suspension from practice for three or more years. The Panel went on to note that this sanction recommendation was made separately and prior to any consideration of the misconduct alleged in the other disciplinary proceeding involving 51 formal charges.

The Formal Charges Proceeding

On November 21, 2005, respondent was served with a notice and statement of charges citing 51 counts of professional misconduct, which alleged that from July 2001 through November 2005, respondent personally either engaged in, ordered, or approved of his employees’ conduct of presenting clients overreaching retainer agreements, settled personal injury cases without his clients’ knowledge or consent, instructed his employees and a notary to forge or falsely notarize clients’ names on releases and other documents, used falsehoods to persuade clients to withdraw their disciplinary complaints, and neglected client matters. Respondent was also alleged to have commingled business and client funds, failed to keep required records of his attorney escrow account, failed to promptly send clients their settlement checks, failed to timely file retainer and closing statements with OCA, and falsely concealed in those statements his use of nonattorneys to solicit clients.

[5]*5Respondent submitted an answer, albeit untimely, in which he admitted to 34 of the charges and denied the remaining 17 counts. The Referee conducted three days of hearings during which respondent stipulated to the admission into evidence of the Committee’s exhibits and witnesses’ statements, and testified in explanation and/or mitigation as to the charges he admitted.

With respect to client Alexandra Bayas, respondent admitted he had arranged for his employees to falsely notarize her genuine signature on two medical records authorization forms and a release form by transferring the image of a notary stamp and signature of the notary on to the forms. He also admitted that he failed to tell Ms. Bayas of the insurance company’s settlement offer, that he caused his employees to forge her signature on a release form and falsely notarized it using a photocopy of a notary stamp, and that he failed to notify her when settlement funds were received, all in violation of Code of Professional Responsibility DR 1-102 (a) (3), (4) and (7), DR 7-101 (a) (1) and DR 9-102 (c) (1) (22 NYCRR 1200.3, 1200.32, 1200.46).

With respect to client Aleksandr Panteleiko, respondent admitted that he failed to inform him of an offer of settlement on his personal injury claim, settled the claim without his consent, failed to inform Panteleiko of the receipt of settlement funds, failed to pay him his share of the settlement proceeds for 11 months, paid a medical vendor $1,000 from the settlement funds purportedly to satisfy a medical lien without obtaining a written release from the vendor, failed to inform Panteleiko of an offer to settle his separate property damage claim, settled that claim without Panteleiko’s consent, and failed to pay Panteleiko his share of those settlement proceeds in violation of DR 7-101 (a) (1) and (3) and DR 9-102 (c) (1) and (4).

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Bluebook (online)
46 A.D.3d 1, 842 N.Y.S.2d 411, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-boter-nyappdiv-2007.