Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, STEVEN W. FISHER, MARK C. DILLON, FRED T. SANTUCCI, JJ.
DISCIPLINARY proceeding instituted by the Grievance Committee for the Tenth Judicial District. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on January 31, 1979. By decision and order on application of this Court dated December 28, 2007, the Grievance Committee for the Tenth Judicial District was authorized to institute and prosecute a disciplinary proceeding against the respondent, and the issues raised were referred to John P. Clarke, Esq., as Special Referee to hear and report. Rita E. Adler, Hauppauge, N.Y. (Mitchell T. Borkowsky of counsel), for petitioner. Moran Karamouzis, LLP, Rockville Centre, N.Y. (Grace D. Moran of counsel), for respondent.
The Grievance Committee for the Tenth Judicial District (hereinafter the Grievance Committee) served the respondent with a petition containing nine charges of professional misconduct. After a prehearing conference and a hearing, the Special Referee sustained all nine charges. The Grievance Committee now moves to confirm the Special Referee's report and impose such discipline as the Court deems just and proper. The respondent's counsel has submitted an affirmation in response, asking that the Special Referee's report be confirmed with respect to the facts of misconduct, and that appropriate weight be given to the evidence in mitigation when determining a just and proper sanction.
The charges in the petition involve the respondent's submission of affirmations of legal services to the Surrogate's Court, Suffolk County, which were false and misleading with respect to three separate matters.
Charge one alleges that the respondent engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation by knowingly executing and filing with the Surrogate's Court, Suffolk County, an affirmation and supporting documents containing false or misleading statements in connection with an application for fees for legal services rendered as guardian ad litem in the matter of the estate of Frederick F. Hoffman, Jr., in violation of Code of Professional Responsibility DR 1-102(A)(4) (22 NYCRR 1200.3[A]).
The respondent was appointed guardian ad litem for the unknown beneficiaries of the Hoffman estate, on or about October 22, 2003. Between then and May 26, 2004, the respondent undertook to perform the usual and necessary legal services required to protect the interests of the unknown beneficiaries of that estate. The respondent delegated many of those services to her associate, Toni J. Biscardi, Esq. During that time, the respondent and Ms. Biscardi recorded the dates, time devoted, and tasks performed on the Hoffman estate on a time sheet (hereinafter the Hoffman Time Log). The Hoffman Time Log reflected that between October 27, 2003, and May 26, 2004, Ms. Biscardi devoted 18.68 hours to the Hoffman estate, and the respondent devoted .58 hours, for a total of 19.26 hours.
On or about May 27, 2004, the respondent knowingly altered or caused to be altered the Hoffman Time Log by deleting Ms. Biscardi's initials from the first column of the document, which called for the identity of the employee who actually performed the services, and replacing them with her own initials. The altered Hoffman Time Log thereafter identified and credited the respondent with having personally performed all 19.26 hours of the services rendered by her office on the Hoffman estate. On or about May 27, 2004, the respondent executed an affirmation of legal services as guardian ad litem (hereinafter the Hoffman affirmation) in support of an application to the Surrogate's Court for legal fees for services rendered, and attached the altered Hoffman Time Log thereto.
In the Hoffman affirmation, the respondent submitted, under penalty of perjury, that she had rendered the services, that the time records were contemporaneously recorded, and that the hourly rate of $250 was reasonable and customary in view of the level of her expertise.
The statements in the respondent's affirmation were false or misleading in that she had not personally performed all of the services rendered and intentionally failed to include any reference to the services performed by her associate. The respondent engaged in dishonest conduct by executing the Hoffman affirmation which contained the false or misleading statements, by deleting Ms. Biscardi's initials from the original time log, replacing them with her own, and attaching the altered Hoffman Time Log as an exhibit to the Hoffman Affirmation.
On or about June 1, 2004, the respondent filed the aforesaid materials with the Surrogate's Court, Suffolk County, in support of her application for payment at the customary rate of $250 per hour.
Charge two alleges that the respondent engaged in conduct prejudicial to the administration of justice, in violation of Code of Professional Responsibility DR 1-102(a)(5) (22 NYCRR 1200.3[a]), ...