NY Underlying Tort Action
Facts: A client hired the attorney to bring an action against the New York City Department of Health for emotional distress arising from its testing error that resulted in a report incorrectly indicating that he was HIV positive. The attorney filed a notice of claim but he was mistaken as to the filing deadline, and failed to seek leave to file a late notice of claim, which resulted in the dismissal of the action. The client brought a legal malpractice and fraud action against the attorney. The court found that the attorney had convinced his client to retain him by providing a resume that was “filled with patent falsehoods and misrepresentations designed to portray him as an experienced litigator,” and further found that the dismissal of the client’s state court action resulted solely from the attorney’s negligence. The jury found for the client. The disciplinary committee brought a proceeding against the attorney, seeking an order finding him guilty of professional misconduct. The issue of sanctions was referred to a referee, who recommended public censure.
Issue: Is public censure an appropriate sanction when an attorney has made misrepresentations in his resume to induce a client to hire him and has negligently filed a notice of claim for the client’s case?
Ruling: Yes, given the totality of the circumstances, a public censure sufficed to demonstrate to the legal profession to take the lawyer's misconduct seriously.
Lesson: The court takes into account the nature of the misconduct, and the various mitigating factors when sanctioning attorneys who are guilty of professional misconduct. Here, the duty of candor that a lawyer owes to a prospective client was surely at issue.