New York Rules Of Professional Conduct

You are an attorney in private practice. You get to the office one morning and have a voicemail message from a fellow attorney, Daniel Ittall. Mr. Ittall has a strong reputation in the community for being a fierce advocate for his clients and a hardworking, trustworthy attorney. Mr. Ittall is an acquaintance and does not sound well in his voicemail; he asks you to give him a call when you have a chance. Concerned, you call him back right away. Mr. Ittall advises that he is embarrassed and doesn’t want to bother you. He says he might need some help and that he’s heard from friends that you represent attorneys when they’re in trouble. You advise him that yes, you have represented many attorneys in your long career. You encourage him to tell you what is going on so that you can see if you can help, and assure him that what he tells you would be protected by the attorney-client privilege.Mr. Ittall says that he “got some letters” from the bar association. He didn’t know what to do and he was afraid so he didn’t do anything. Now he just got served with a petition that says that he is being charged with several counts of professional misconduct. He advises that essentially, all the allegations are true.1. In February 2018, he accepted $1000 from a prospective client to take on a new case. He never did anything for the client and when the client repeatedly asked for her money back, he did not respond. In the meantime, the client lost the opportunity to pursue her case. He is charged with violating Rules of Professional Conduct 1.3, 1.4, 1.15, and 8.4.2. In April 2018, he deposited the proceeds of a real estate deal for a longstanding client into his trust account. He was supposed to distribute $5,000 of the funds to his client. He never did. He is charged with violating Rules of Professional Conduct 1.3, 1.4, 1.15, and 8.4.3. In September 2018, he agreed to represent a young man in an appeal of his criminal conviction. He requested and received a retainer of $5,000. He never filed the appeal. Despite the client’s numerous letters and calls, he never returned the money. He is charged with violating Rules of Professional Conduct 1.3, 1.4, 1.15, and 8.4.4. In October 2018, his trust account balance fell below zero. He is charged with violating Rule of Professional Conduct 1.15.5. In November 2018, the bar association received complaints from each of these three clients. They sent a separate letter to Mr. Ittall about each complaint, asking for him to respond. Mr. Ittall never responded. The bar association sent three more letters on each case; Mr. Ittall still never responded. The official committee that handles grievance matters for the courts sent a letter on each case to Mr. Ittall, advising that he was to appear before the committee regarding each complaint on a certain date. He did not appear. He is charged with violating Rule of Professional Conduct 8.4.2. You note that these charges are all from a short time period (all in 2018) and that they are in stark contrast to the wonderful reputation he has built in the community. You ask him what really is going on.Mr. Ittall explains that in early 2016, he was riding his ATV on land he owns down in Chautauqua County and had a bad accident. He was 47 years old at the time. Afterwards he experienced significant pain. Before the accident he was an active runner and tennis player; after the accident he could no longer engage in much physical activity. His doctor prescribed pain medications and he began physical therapy.Mr. Ittall confides that his family has a history of depression, alcoholism, and addiction. He has had some episodes of depression over the years but nothing that has ever interfered with his ability to work. Because of the history of alcoholism and addiction, he has avoided drugs and drinks alcohol only on special occasions.After the accident though, he quickly became dependent on the pain medications. He took increasing amounts of medications throughout 2016 and 2017. He lied to several doctor friends to get prescriptions from multiple sources; he processed the prescriptions at pharmacies all over town. He also stole prescriptions from his sister who is a physician. In the summer of 2017, she caught him. She told him that he needed help and if he didn’t seek it she would have to give him “tough love” and turn him in.Severely addicted, he started buying drugs on the street. He often did not know what he was really taking. At that time, he still was able to function and maintained his law practice, but his addiction grew. In the meantime, in the latter part of 2017 his mother fell ill and became unable to take care of herself. To add insult to injury, his twenty-five year marriage was breaking down.Just after Christmas time in 2017, he was offered a drug he didn’t recognize. He immediately was hooked. He later learned that it was heroin.Meanwhile, Mr. Ittall’s oldest son had just started college, and he was footing the medical bills for his mother. Consequently, Mr. Ittall was low on cash. For the first time in his life, he “dipped into” his client’s money. Over the course of 2018 he maxed out all the credit cards he could get his hands on and depleted all his client’s money. In November 2018 he was broke and nearly overdosed. His sister checked him into an inpatient rehabilitation center.He has now been clean for almost two years. He sees a psychiatrist for medication and therapy, Dr. Connie Jones. He is trying to borrow money from friends to repay the clients to whom he owes money. He wants to pay back every cent. He is focusing on his health and recovery.Mr. Ittall is confident that he can persevere and be a great lawyer again; he desperately wants to keep his law license. He understands that the charges are serious. He believes that the district attorney also is thinking about prosecuting him, but according to Mr. Ittall, “that is a whole ’nother story.” He assures you that he has retained a criminal lawyer to represent him on that aspect of this situation.Mr. Ittall advises that he had no intent to harm anyone; he was in the throws of addiction. He’s never had any problems with his law practice in twenty years. He asks if there is any hope for him to keep his license.You tell him that you’ll sure try and that you’ll give him a call back. Your research reveals the applicable statutes/rules:Judiciary Law §90 gives the Appellate Divisions of the New York Supreme Courts the power to admit attorneys to practice and to discipline them, including disbarment.22 NYCRR §1020 (New York Code of Rules and Regulations) outlines procedures for attorney discipline: If attorney misconduct under the New York Rules of Professional Conduct is found by the local bar association, the matter is forwarded to the Grievance Committee of the Appellate Division for investigation. A hearing before the judges may then be scheduled.22 NYCRR §1240 outlines possible dispositions:• Private letter of advisement or admonition to the attorney• Censure: public disclosure of the matter• Suspension from law practice for a period of time• Disbarment• Before final disposition, there may be diversion to a monitoring program if there aresubstance abuse or other mental or physical health issues• Note that a felony or “serious” criminal conviction results in automatic disbarment.Non-serious criminal convictions are sent to a hearingNew York Rules of Professional Conduct (On D2L) detail attorney conduct guidelinesYou have found several cases which you want to use in your memo:Matter of Johnson, 192 A.D.2d 7, 600 N.Y.S.2d 548 (4th Dep’t 1993); Matter of Madsen, 230 A.D.2d 275, 654 N.Y.S.2d 501 (4th Dep’t 1997); Matter of Winston, 137 A.D.2d 385, 528 N.Y.S.2d 843 (1st Dep’t 1988); Matter of Taliuaga, 21 A.D.3d 238, 800 N.Y.S.2d 30 (2d Dep’t 2005);• • • •3.4. In light of the research you call Mr. Ittall and advise him that he has a shot. You advise that you’ll need to submit a lot of information to the court about his background, his addiction,and the connection between the addiction and the conduct. He agrees to gather letters of support from fellow attorneys, friends, former clients, and family. He knows for sure that he can get letters from his law partner, his son, his priest, and a former client.With explicit permission from your client, you immediately call his mental health provider, Dr. Jones. Dr. Jones advises that she is familiar with Mr. Ittall’s legal troubles and that he had given her permission to speak with you. Dr. Jones says that she first treated Mr. Ittall after he left inpatient rehab in 2018. In addition to his addiction issues, she has diagnosed Mr. Ittall with major depressive disorder. When Mr. Ittall first came to see her, he was non-compliant with medication and missed many appointments. Over the past two years, however, Mr. Ittall has been compliant with his medication and has attended all his appointments. He actively participates in their therapy sessions. He has made substantial progress.Dr. Jones describes the background of addiction and major depressive disorder, and the interplay between the two. She advises that when people are suffering from untreated, profound episodes of addiction and/or major depressive order, they often do things that they ordinarily would not do. She believes that this is what happened with Mr. Ittall. It is her professional opinion that but for Mr. Ittall’s addiction and major depressive order, he never would have committed the misconduct at issue.It also is Dr. Jones’s professional opinion that Mr. Ittall is dedicated to recovery and that he has a positive prognosis. She states that if Mr. Ittall continues to be compliant with his medication and therapy, it is her professional opinion that he will remain stable. She has confidence that he can do so.Dr. Jones said that she is willing to help in any way she can. She can submit something to the court. She advises, however, that she never knows what to write in these situations and is very busy – therefore she would much prefer if you draft something and send it to her for her review. She’ll make any necessary revisions. You take down her cell phone number and tell her you’ll be in touch.You put down the phone and have voicemail messages from Mr. Ittall’s law partner, son, priest, and client. They all want to write a letter to the court in support of Mr. Ittall but don’t know what to say. You have to call them back and advise them, or outright draft the letters for them to sign.Mr. Ittall’s response to the charges, if any, is due by Thursday, November 16 2020. The court will consider memoranda and various documents from attorneys that discuss mitigating circumstances. They will consider letters and affidavits, but they should all be assembled in one package.

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