In re Larsen

50 A.D.3d 41, 849 N.Y.S.2d 560
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJanuary 31, 2008
StatusPublished
Cited by11 cases

This text of 50 A.D.3d 41 (In re Larsen) 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 Larsen, 50 A.D.3d 41, 849 N.Y.S.2d 560 (N.Y. Ct. App. 2008).

Opinions

OPINION OF THE COURT

Per Curiam.

Respondent Leah Larsen was admitted to the practice of law in the State of New York by the First Judicial Department on February 27, 1978 and, at all times relevant herein, has maintained an office for the practice of law within the First Department.

The Departmental Disciplinary Committee (the Committee) served respondent with a notice and statement of charges setting forth 35 counts of professional misconduct arising out of her representation of the husband in a contested matrimonial action. Respondent, in an unverified answer, denied all of the charges. Separate hearings were held as to liability and sanctions before a Referee, after which the Referee sustained 22 of the 35 charges and recommended that respondent be suspended for 18 months and make restitution to her client in the amount of $30,464. After oral argument, a Hearing Panel, by a four-to-one majority, affirmed the 22 charges sustained by the Referee, sustained four additional charges that had been dismissed by the Referee, and increased the recommended sanction to 21/2 years in addition to the restitution ordered by the Referee.

Respondent was charged with five separate violations of the Disciplinary Code (charges 1, 2, 4, 5 and 6) related to the circumstances surrounding her retention by the husband/client. The Referee and Hearing Panel did not sustain charges 1 or 4 through 6 because the signature on the retention agreement appeared to be that of respondent’s client. Charge 2, however, which asserted that respondent failed to provide her client with a statement of client’s rights and responsibilities, in violation of Code of Professional Responsibility DR 2-106 (f) (22 NYCRR 1200.11), was sustained, as respondent admitted that there was no proof that she had done so.

[43]*43Charges 7 through 17 assert that respondent, on a number of occasions, either improperly notarized her client’s signature, or signed her client’s name, with the client’s consent, notarized that signature, and then submitted the documents to Supreme Court, Dutchess County. Although respondent acknowledged that she notarized her client’s signature without his presence, she explained that she did not intend to mislead the court. The Referee declined to sustain four of the charges because respondent had obtained her client’s permission prior to notarizing each signature and, therefore, found that her conduct did not involve dishonesty, fraud, deceit or misrepresentation in violation of DR 1-102 (a) (4) (22 NYCRR 1200.3). The Hearing Panel, however, correctly sustained those charges, as false signatures and false notarizations constitute violations of DR 1-102 (a) (4), even if done with the consent of the client (see Matter of Fauci, 28 AD3d 192 [2006]; Matter of Lazroe, 25 AD3d 263 [2005]).

Charges 18 through 26 relate to respondent’s failure to disburse escrow funds, which consisted of proceeds from the sale of the marital house, in accordance with court orders issued in the underlying matrimonial action. Supreme Court had ordered that $38,933 was to be used to pay the couple’s credit card debt, with the remainder of the funds, $44,347, to be used to pay respondent’s client’s retirement plan. Supreme Court restated its order after a motion for reargument. Charges 18 through 21 pertain to respondent paying $42,530.88 toward the marital credit card debt, which exceeded the amount ordered by the court by $3,597.88. The Referee and Hearing Panel, however, both found no liability because respondent had permission from her client to pay the larger sum, and the departure from the court order did not benefit her in any way.

Charges 22 through 26 arise out of respondent’s advice to her client that it was permissible for her to disregard the court’s ruling concerning the repayment of the retirement account and, instead, use those funds to pay her legal fees. The Referee and the Hearing Panel sustained the charges, with the Hearing Panel pointing out that the court’s order used mandatory language that could not be ignored and that while respondent maintained that she could have imposed a lien on the escrow account and commenced arbitration for payment of her fees, she failed to follow the procedures and safeguards set out to sustain such an action. Moreover, the Hearing Panel further opined that it was “highly unlikely” that respondent would have prevailed in an arbitration, given that she had failed to provide [44]*44her client with itemized bills during the course of the proceeding; there was no document evidencing an agreement between respondent and her client concerning attorneys’ fees; and the record reflected a bitter dispute between respondent and her client regarding her fees.

Charges 3 and 27 through 31 assert that respondent failed to send regular itemized bills during the course of her representation; sent a single, nonitemized, excessive bill after the close of the case; and pressured her client to withdraw a complaint he had made to the court about her fees. Since respondent conceded that she had never sent her client a bill during the IV2 year divorce proceeding, respondent’s conduct was found in violation of DR 1-102 (a) (5) (charge 3).

Charges 27 and 28 concern respondent’s forwarding of a one-page, nonitemized bill for $168,400 in legal services, a fee more than eight times greater than that requested by the wife’s attorney, which was unsubstantiated by time records or periodic bills. Respondent’s client had originally proposed that respondent keep the remainder of the escrow funds, $40,964, as legal fees, provided that she forward $10,500 of the funds in order to repay a loan, and pay court-ordered fees to his wife’s attorney. Respondent refused, stating it was insufficient and, in response to her client’s request for a bill, sent the one-page, nonitemized bill for $168,400, claiming 842 hours of work at $200 per hour.

The wife’s attorney eventually filed a motion seeking a judgment against respondent’s client for failure to pay legal fees, in response to which the client forwarded a letter to the court which, inter alia, questioned his fee arrangement with respondent, and expressed his astonishment at the amount of the bill. The Committee contends that respondent, after reviewing the letter, telephoned her client and threatened to seek the full amount of the bill at arbitration unless he retracted the letter. The client then wrote a second letter to the court stating he wished to rescind the letter and “absolve” respondent, but the court attorney for the judge presiding over the divorce proceeding forwarded the matter to the Committee, commenting that respondent’s fees appeared “grossly exorbitant in light of the circumstances of the case, the income and assets of the parties involved, and the ultimate result.”

As a result, the Referee and the Hearing Panel sustained: charge 27, which asserted that respondent charged an illegal or excessive fee, in violation of DR 2-106 (a); charge 28, that such conduct adversely reflected on her fitness as a lawyer, in viola[45]*45tion of DR 1-102 (a) (7); charge 29, which alleged that respondent’s conduct would serve merely to harass or maliciously injure her client, in violation of DR 7-102 (a) (1) (22 NYCRR 1200.33); charge 30, which asserted that respondent’s conduct in pressuring her client to withdraw his complaint was prejudicial to the administration of justice, in violation of DR 1-102 (a) (5); and charge 31, which conduct adversely reflected on her fitness as a lawyer, in violation of DR 1-102 (a) (7).

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Cite This Page — Counsel Stack

Bluebook (online)
50 A.D.3d 41, 849 N.Y.S.2d 560, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-larsen-nyappdiv-2008.