Lawyers Faulted for Twisting Client’s Story by Explaining Facts Needed for Viable Case

By Joan C. Rogers  

Two lawyers will be suspended for nine months after they induced a personal injury client to misrepresent a key fact by explaining the law governing liability before asking her about that detail, the New York Supreme Court, Appellate Division, First Department, ruled May 14 (In re Rios, N.Y. Sup. Ct. App. Div. 1st Dep't, No. 3253, 5/14/13).

The lawyers engaged in conduct reflecting adversely on their fitness to practice law by intentionally influencing the client to change her story in order to pursue a fraudulent action, the court said in a per curiam opinion.

It imposed a nine-month suspension on the lawyers for getting the client to lie, using the misrepresentation to pursue a fraudulent lawsuit, and concealing the actual facts from a lawyer they brought in to handle the client's trial.

New and Improved

Shane O. Rios and Daniel H. Levy were admitted to practice in New York in 2005. After working as associates in personal injury firms, they opened their own practice in 2008. One of their firm's first cases led to this disciplinary proceeding.

A former client asked Rios and Levy to meet with her mother about injuries she sustained in a fall. They met with the prospective client at her home. She told them she fell on a badly cracked sidewalk while exiting a church on a particular street.

“[R]espondents intentionally influenced their client to misrepresent the situs of her accident in order to pursue an action which they knew was fraudulent from its inception.”
N.Y. App. Div., 1st Dep't

After accepting the client's case, the lawyers searched on the internet and identified the only church on the street the client named. They notified the church about the client's accident; they also sent a notice to the city where the church was located, requesting information about defects on the sidewalk abutting the church.

The city responded that it had no prior written notice of any defects on the sidewalk abutting the church.

The lawyers went to the accident site. They found no defects on the only sidewalk abutting the church, but they noticed that the sidewalk/driveway abutting a house across the street from the church was badly cracked.

Meeting again with the client, Rios and Levy explained the law. They told her that if she fell on the sidewalk abutting the church she would not have a viable claim for her injuries, whereas if she fell across the street on the driveway, she had a viable case against the owner of that property.

After showing her photographs of these locations, they asked the client where she fell. She indicated she had fallen on the sidewalk across the street from the church.

The lawyers filed suit against the homeowner and pursued discovery. When the case did not settle, they associated an experienced litigator but did not tell him that the client initially indicated she fell on the sidewalk abutting the church.

Before giving that lawyer the file, Rios and Levy removed the claim letter they initially sent to the church and photographs of the sidewalk abutting the church, as well as the request to the city and the city's response. At trial, the client's case was dismissed.

Admitted Misconduct

The facts eventually came out, and disciplinary authorities charged Rios and Levy with violating multiple aspects of the New York Rules of Professional Conduct. The lawyers admitted all of the factual allegations and conceded nearly all of the misconduct charges.

After a hearing, a referee found the lawyers were indeed guilty of the misconduct they admitted. The hearing panel approved the referee's report, except that it recommended a nine-month sanction instead of the six months suggested by the referee.

The appellate court confirmed the hearing panel's misconduct determinations in light of the lawyers' admissions. According to those findings, the lawyers violated:

• Rule 8.4(h) (conduct that adversely reflects on lawyer's fitness as attorney), by informing their client about the law governing liability for her accident prior to asking her to identify the precise spot where she fell;

• Rule 8.4(c) (dishonesty, fraud, deceit, or misrepresentation), by intentionally concealing investigative information about their client's case from the attorney they retained to try the suit; and

• Rule 1.1(b) (handling legal matter that lawyer knows he is not competent to handle, without associating with lawyer who is competent to handle it), by failing to find out the precise location of their client's accident in a nonsuggestive manner.


Nine-Month Suspension

The court acknowledged that after these events the lawyers made changes to their practice, getting experienced lawyers to serve as mentors and amending their intake procedures to ensure they gather all facts before explaining the law. In addition, the lawyers expressed considerable remorse for their misconduct, presented several character witnesses, and chronicled their public service and community service.

On the other hand, the court pointed out, the panel found that the lawyers engaged in a scheme motivated by financial gain in which they deliberately influenced and encouraged their client to lie and then perpetuated the deceit for more than a year.

The record clearly showed, the court said, that “respondents intentionally influenced their client to misrepresent the situs of her accident in order to pursue an action which they knew was fraudulent from its inception.”

The court also emphasized that the lawyers brought an action against an innocent third party and conducted discovery for more than a year with full knowledge that the action was based on a misrepresentation they themselves influenced. Moreover, it said, when the lawyers were forced to obtain trial counsel they failed to tell counsel that the accident did not occur where the client alleged and actually sanitized the case file to conceal that fact.

Given the protracted length of the lawyers' misconduct and the harm they caused to an innocent third party, a nine-month suspension from practice is warranted rather than the six months recommended by the referee, the court concluded.

Chief Counsel Jorge Dopico and Norma I. Melendez of the Departmental Disciplinary Committee for the First Department, New York, represented their office. Susan Brotman, New York, represented Rios and Levy.

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