Appellate Division Suspends Lawyer for Misrepresenting Affiliation with Local Counsel, Signing Papers Without Permission

This article was originally published April 3, 2020.

In Matter of McMahon (2020 NY Slip Op 02120), the Appellate Division, First Department suspended a lawyer for 60 days based on an order from the Virginia State Bar Disciplinary Board which imposed the same discipline. In the underlying Virginia disciplinary proceeding, the respondent was accused of signing the names of three different Virginia attorneys to pleadings in a Virginia action without their authorization.

According to the decision, the respondent’s associate, who was admitted in Virginia, filed a civil action in Virginia. The complaint listed respondent and his associate as counsel in the matter. Although the respondent filed two motions for admission pro hac vice, both were denied on procedural grounds. The associate subsequently left respondent’s firm but did not take the case with him. After the associate left, respondent continued with the Virginia action and signed pleadings on behalf of himself, the associate who was no longer with the firm, and a third Virginia lawyer who never agreed to act as local counsel. Respondent subsequently found another Virginia lawyer who agreed to act as local counsel. However, instead of listing her as local counsel, the respondent held her out as “of counsel” to his firm and incorrectly stated that she was admitted to practice in Virginia and Maryland. In addition, respondent continued to sign the third lawyer’s name to motions and other papers without her permission and without showing her the papers in advance of filing. In response to the allegations, the respondent stated that he believed he had “blanket permission” to sign the other lawyers’ names, however, each of the lawyers testified to the contrary.

The Virginia Disciplinary Board suspended respondent for 60 days. Respondent was then reciprocally disciplined in the District of Columbia and New York for the same amount of time.

The fact that respondent was reciprocally disciplined in New York was to be expected. Under New York’s Rules for Disciplinary Matters, a New York lawyer who has been disciplined in a foreign jurisdiction must report the imposition of discipline to the Attorney Grievance Committee in the appellate division where the lawyer is admitted and/or practices. The grievance committee can then seek an order from the New York courts imposing reciprocal discipline. In opposition to a motion for reciprocal discipline, the respondent is limited to raising three defenses:

(1) the procedure in the foreign jurisdiction was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process;

(2) there was such an infirmity of proof establishing the misconduct as to give rise to the clear conviction that the Court could not, consistent with its duties, accept as final the finding in the foreign jurisdiction as to the respondent’s misconduct; or

(3) the misconduct for which the respondent was disciplined in the foreign jurisdiction does not constitute misconduct in New York.

Thus, unless a respondent can raise one of the above three defenses, he or she may be better off focusing on mitigating evidence.

Leaving aside the imposition of reciprocal discipline, this case can serve as a cautionary tale for two reasons. First, when a lawyer leaves a law firm, the firm should make sure that it still has lawyers who are able to handle any cases left behind. This is especially true where the departing lawyer is admitted in a jurisdiction other than where the law firm is located. Second, any agreement to engage local counsel should be in writing and should delineate the responsibilities of each firm. Otherwise both lead counsel and local counsel could find themselves in the cross-hairs of a court or grievance committee or facing a malpractice suit.