In re Fauci

28 A.D.3d 192, 811 N.Y.S.2d 38
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMarch 14, 2006
StatusPublished
Cited by5 cases

This text of 28 A.D.3d 192 (In re Fauci) 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 Fauci, 28 A.D.3d 192, 811 N.Y.S.2d 38 (N.Y. Ct. App. 2006).

Opinion

OPINION OF THE COURT

Per Curiam.

Respondent Anthony J. Fauci was admitted to the practice of law in the State of New York by the First Judicial Department on November 1, 1999, and his brother Christopher Joseph Fauci was admitted to the practice of law in the First Judicial Department on February 3, 1997. At all times pertinent to this proceeding, respondents together maintained an office for the practice of law within the First Judicial Department.

Respondents were preceded into practice by their father, James R. Fauci, who maintained a law office under the professional name James R. Fauci, Associates, in Manhattan until his sudden death in May 1995. In 1992, James Fauci established an IOLA account on which he allowed respondent Anthony to be a signatory even though Anthony was not admitted to practice until 1999. Prior to his death, Mr. Fauci would take Anthony with him to court on numerous occasions, and on at least two occasions had Anthony, who was not yet admitted, attend conferences without him. Subsequent to Mr. Fauci’s death, matters which were pending in his office were handled by his associate Sam Racer, Esq. Prior to Anthony’s admission, and at Racer’s and later his brother Christopher’s insistence, Anthony signed numerous IOLA checks to disburse funds to clients.

The Departmental Disciplinary Committee for the First Judicial Department initiated an investigation against both respondents as a result of complaints filed by two of their father’s clients and one client of Christopher’s. As a result, a [194]*194notice and statement of 36 charges were served on respondents on July 9, 2003. Respondents submitted an answer denying each of the counts. Thereafter, the Committee moved for leave to serve supplemental charges against Anthony based on his failure to respond to the Committee’s request to answer a new disciplinary complaint.

The parties entered into a prehearing stipulation of facts, and five days of hearings were held before a referee, at which respondents testified.

The referee sustained seven counts as to Anthony covering his false notarization of his own bar application and repeated false testimony thereon (counts 13-17), holding himself out as an attorney and engaging in the unlawful practice of law prior to his bar admission by attending court conferences on behalf of a client and signing a “so ordered” stipulation on her behalf (count 33), and escrow violations (count 1). The referee also sustained the supplemental charges relating to Anthony’s failure to answer the new disciplinary complaint.

As to Christopher, the referee sustained four counts regarding his repeated false testimony concerning the notarization of Anthony’s bar application (counts 18-19), the neglect of one client matter (count 36), and permitting a nonlawyer under his supervision (Anthony) to sign checks on an IOLA account (count 5).

The referee held a sanction hearing at which respondents did not testify, but offered testimony on their behalf. Respondents argued that they were being held accountable for their father’s actions. They maintained that their relationship with their father and his sudden death had a bearing on the charges alleged. Respondents sought a private reprimand, or, in the event public discipline was warranted, public censures. The Committee requested a three-year suspension for Anthony and no less than an 18-month suspension for Christopher. However, the referee recommended Anthony be suspended for two years and Christopher for one year.

A Hearing Panel sustained all but two charges which had been sustained by the referee. Although the referee sustained counts 1 and 5, relating to Anthony’s signing of IOLA checks prior to his admission to practice, the Hearing Panel concluded that the Disciplinary Rules did not apply to nonlawyers, and, therefore, did not sustain count 1 as to Anthony and count 5 as to Christopher. The Hearing Panel also sustained one additional charge as to Christopher (count 26—involving his notarization [195]*195of a client’s signature when she was not present). Despite the differences in the charges sustained, the Hearing Panel nonetheless concurred in the sanction recommendations on the ground that respondents’ false testimony alone regarding the forged notarization on Anthony’s bar application warranted the referee’s recommended suspensions.

The Committee now seeks an order pursuant to 22 NYCRR 603.4 (d) and 605.15 (e) (2) confirming the determination of the Hearing Panel recommending a two-year suspension for Anthony and a one-year suspension for Christopher.

Respondents filed a cross motion which on its face limits the relief sought to disaffirming the Hearing Panel’s report only as to sanction and requesting respective public censures instead. Most of the papers in support of the cross motion offer mitigation of the alleged misconduct. However, counsel maintains that, notwithstanding that no affirmative request to disaffirm factual findings was made in the cross motion, “most of the counts sustained should be dismissed.”1

We confirm the findings of fact of the Hearing Panel as they are fully supported by the record. To the extent respondents’ cross motion can be construed as one to disaffirm certain of those findings, it is denied.

With respect to Anthony’s application for admission to the bar, the Committee retained a handwriting expert who testified that after examining 12 known signatures of Christopher, and comparing them to the signature on the notarial jurat on Anthony’s bar application, and after examining the known signature of Anthony, it was Anthony who had affixed Christopher’s signature to his affidavit for admission to the bar. Accordingly, respondent violated DR 1-101 (a) (made a materially false statement in connection with application for admission to the bar) and DR 1-102 (a) (4) (engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation) and (5) (engaged in conduct prejudicial to the administration of justice) (22 NYCRR 1200.2, 1200.3) and counts 13-15 were properly sustained against Anthony In addition, by testifying before the Committee that he did not affix the notary signature when in fact he [196]*196did, Anthony violated DR 1-102 (a) (4) and (5) and counts 16 and 17 were properly sustained against him.2

In 1984, a client retained respondents’ father, James Fauci, to prosecute a medical malpractice action. In the course of the litigation, Anthony appeared at two court conferences, one on October 8, 1992 and the other on May 5, 1994, and signed a “so ordered” stipulation on her behalf before he was admitted to practice law. Anthony testified before the referee that it did not look like his signature as “Attorney for Plaintiff’ on the “so ordered” stipulation, and he did not recall attending these conferences.

However, the Committee’s handwriting expert testified that it was indeed Anthony’s signature on the stipulation. The Committee also presented two witnesses who testified that Anthony had attended that conference. Thus, the record fully supports the finding that Anthony held himself out as an attorney in violation of DR 1-102 (a) (3), and, therefore, count 33 was properly sustained.

On November 15, 1996, Justice Sklar struck this medical malpractice action from the trial calendar, but it remained on the court’s individual calendar. The Fauci office was notified that the case had been stricken from the calendar.

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Cite This Page — Counsel Stack

Bluebook (online)
28 A.D.3d 192, 811 N.Y.S.2d 38, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-fauci-nyappdiv-2006.