New York Law Review

Tag: professional responsibility

  • People v. DePallo, 96 N.Y.2d 437 (2001): Defense Counsel’s Duty When Client Intends to Commit Perjury

    96 N.Y.2d 437 (2001)

    When a criminal defendant insists on committing perjury, defense counsel acts appropriately by informing the court of the situation, allowing the defendant to testify in narrative form, and refraining from referring to the perjured testimony during summation.

    Summary

    DePallo was convicted of murder and robbery. Prior to trial, he admitted involvement in the crime to his attorney but later insisted on testifying that he was home the entire evening. His attorney, believing this testimony would be perjury, informed the court. At trial, DePallo testified in narrative form without direct questioning from his counsel. His attorney did not mention the testimony during closing arguments. The New York Court of Appeals affirmed the conviction, holding that the attorney acted ethically and did not deprive the defendant of effective assistance of counsel. The court clarified a defense attorney’s duty when confronted with a client intending to commit perjury, balancing zealous advocacy with the duty to the court.

    Facts

    DePallo and accomplices attacked and killed a 71-year-old man. DePallo’s blood and fingerprint were found at the crime scene, and he made incriminating statements to the police. He later admitted during pretrial proceedings that he had forced an accomplice to participate under threat of death. At trial, DePallo’s attorney advised him not to testify, but DePallo insisted. He then testified he was home the night of the murder, contradicting his earlier statements.

    Procedural History

    DePallo was convicted of second-degree murder (intentional and felony murder), first-degree robbery, and first-degree burglary. The Appellate Division affirmed. A judge of the Court of Appeals granted leave to appeal. The New York Court of Appeals then affirmed the Appellate Division’s decision, upholding the conviction.

    Issue(s)

    1. Whether defense counsel’s disclosure to the court of the defendant’s intent to commit perjury constituted ineffective assistance of counsel.

    2. Whether the defendant’s right to be present during a material stage of trial was violated by his absence from the ex parte communication between the court and his attorney.

    Holding

    1. No, because defense counsel appropriately balanced the duty to zealously represent the client with the duty to prevent fraud upon the court.

    2. No, because the ex parte communication was merely procedural and had no bearing on the defendant’s ability to defend against the charges.

    Court’s Reasoning

    The Court reasoned that a defendant does not have a right to commit perjury, and the Sixth Amendment does not compel counsel to assist in presenting perjured testimony. Defense counsel has a duty to zealously represent a client, but that duty is circumscribed by the duty to comply with the law and prevent fraud upon the court. The court cited DR 7-102 of the New York Code of Professional Responsibility, which prohibits an attorney from knowingly using perjured testimony or false evidence. The court noted that counsel first tried to dissuade DePallo from testifying falsely. Once DePallo insisted, counsel properly notified the court. The Court distinguished this case from situations where the disclosure of perjury occurs during a bench trial. Regarding the defendant’s absence from the ex parte communication, the Court held that the proceeding was procedural and did not require DePallo’s presence, as it involved matters of law with no potential for meaningful input from the defendant. The Court cited Nix v. Whiteside, 475 U.S. 157 (1986), stating, “[S]ince there has been no breach of any recognized professional duty, it follows that there can be no deprivation of the right to assistance of counsel.”

  • In re David S. Kahn, 86 N.Y.2d 510 (1995): Final Attorney Discipline Requires a Judgment of Conviction

    In re David S. Kahn, 86 N.Y.2d 510 (1995)

    An attorney cannot be subjected to final disciplinary action based on conviction of a serious crime until a judgment of conviction, including sentencing, has been rendered.

    Summary

    This case addresses whether an attorney can face final disciplinary sanctions following a guilty plea for a serious crime, but before a final judgment of conviction is rendered (i.e., before sentencing). The New York Court of Appeals held that final sanctions, such as disbarment, cannot be imposed until a judgment of conviction, including sentencing, is final. The Court emphasized the distinction between a “conviction” (a guilty plea or verdict) and a “judgment” (conviction plus sentencing). While an interim suspension can be imposed upon a conviction, final disciplinary action requires a completed judgment.

    Facts

    David S. Kahn, an attorney, pleaded guilty in federal court to tampering with a witness, attempting to evade income tax, and mail fraud. He had not yet been sentenced because he was cooperating with federal authorities. Based on the guilty plea, the Grievance Committee sought to strike Kahn’s name from the roll of attorneys or, alternatively, to suspend him. The Grievance Committee initiated disciplinary proceedings based on Kahn’s conviction of serious crimes.

    Procedural History

    The Appellate Division suspended Kahn from practicing law and authorized the Grievance Committee to institute disciplinary proceedings. A Special Referee sustained the charges. The Grievance Committee moved to confirm the report and impose discipline. The Second Department imposed a final sanction of disbarment. Kahn appealed, arguing the disbarment was premature because there was no final judgment of conviction.

    Issue(s)

    Whether the Appellate Division can impose a final sanction on an attorney convicted of serious crimes before a final judgment of conviction (including sentencing) has been rendered.

    Holding

    No, because Judiciary Law § 90(4)(g) requires a “judgment of conviction against an attorney becoming final” before the Appellate Division can order the attorney to show cause why a final order of suspension, censure or removal from office should not be made.

    Court’s Reasoning

    The Court of Appeals emphasized the distinct meanings of “conviction” and “judgment” under New York Criminal Procedure Law (CPL). A conviction is the entry of a guilty plea or guilty verdict, while a judgment includes both the conviction and the sentence imposed. Judiciary Law § 90(4)(f) allows for interim suspension upon a record of conviction for a serious crime, but § 90(4)(g) explicitly requires a final judgment of conviction before a final disciplinary order can be issued. The court reasoned that imposing final sanctions before sentencing was premature. The purpose of having separate provisions for felonies and serious crimes is “to avoid the automatic disbarment of an attorney without sufficient cause, and [to] also protect the public from unfit attorneys who have committed serious crimes — even though they may not constitute felonies under the laws of this State.” (Governor’s Mem approving L 1979, ch 674, 1979 NY Legis Ann, at 403). The court noted that Kahn remained suspended from practice during the interim period, adequately protecting the public. The Grievance Committee based its case on Kahn’s conviction, not the underlying misconduct; therefore, the disbarment was premature.

  • Niesig v. Team I, 76 N.Y.2d 363 (1990): Defining ‘Party’ for Attorney Communication with Corporate Employees

    Niesig v. Team I, 76 N.Y.2d 363 (1990)

    For the purposes of Disciplinary Rule 7-104(A)(1), a ‘party’ includes corporate employees whose acts or omissions in the matter under inquiry are binding on the corporation (alter egos), imputed to the corporation for liability purposes, or those implementing the advice of counsel; all other employees may be interviewed informally.

    Summary

    Plaintiff, injured at a construction site, sought to privately interview employees of the general contractor (J.M. Frederick) and the property owner (Team I). These employees were witnesses to the accident. The defendants opposed, arguing Disciplinary Rule 7-104(A)(1) barred such contact without their consent. The New York Court of Appeals held that not all corporate employees are considered ‘parties’ under the rule. The Court rejected a blanket ban on communication with all employees and the narrow ‘control group’ test, instead defining ‘party’ to include those whose actions bind or are imputed to the corporation, or those implementing legal advice. Other employees can be interviewed informally, balancing fairness to the corporation with the need for open access to information.

    Facts

    Plaintiff was injured in a fall at a construction site while employed by DeTrae Enterprises, Inc. J.M. Frederick was the general contractor, and Team I owned the property. Plaintiff sued Frederick and Team I, who then filed a third-party action against DeTrae. Plaintiff sought permission to conduct ex parte interviews with DeTrae employees who witnessed the accident, arguing they were not managerial or controlling employees.

    Procedural History

    The Supreme Court denied plaintiff’s request. The Appellate Division modified the ruling, limiting the ban to DeTrae’s current employees. The Appellate Division reasoned that current employees were presumptively within the scope of representation of DeTrae’s attorneys, citing Upjohn Co. v. United States. Plaintiff appealed to the New York Court of Appeals.

    Issue(s)

    Whether employees of a corporate party are considered ‘parties’ under Disciplinary Rule 7-104(A)(1), which prohibits a lawyer from communicating directly with a party known to have counsel, and if so, which employees are included in that definition?

    Holding

    Yes, in part. The Court of Appeals modified the Appellate Division order to allow the interviews. The court held that the definition of “party” under DR 7-104(A)(1) includes corporate employees whose acts or omissions in the matter under inquiry are binding on the corporation, are imputed to the corporation for liability, or are responsible for implementing the advice of counsel because these employees are closely identified with the corporation’s interests. All other employees may be interviewed informally.

    Court’s Reasoning

    The Court reasoned that disciplinary rules should be applied with regard for the interests of non-lawyers involved in litigation. DR 7-104(A)(1) embodies principles of fairness, preventing lawyers from taking advantage of represented parties. While the rule applies to corporations, defining ‘party’ is difficult. The Court rejected a blanket rule barring contact with all employees because it would foreclose vital informal access to facts. The Court also rejected the ‘control group’ test as too narrow, as other employees can also bind the corporation. The Court adopted a test defining ‘party’ to include employees whose acts or omissions are binding on or imputed to the corporation, or those implementing legal advice. This test balances competing interests by protecting the corporation from unfair advantage while permitting access to relevant information. The court stated, “The potential unfair advantage of extracting concessions and admissions from those who will bind the corporation is negated when employees with ‘speaking authority’ for the corporation, and employees who are so closely identified with the interests of the corporate party as to be indistinguishable from it, are deemed ‘parties’ for purposes of DR 7-104 (A) (1).” The court emphasized that attorneys should make their identity and interest known and comport themselves ethically during such interviews. This approach is rooted in evidence and agency law and is consistent with the majority of jurisdictions. The court emphasized that the rule only applies to current employees, not former employees.

  • Kelly v. Greason, 23 N.Y.2d 368 (1968): Attorney Conflict of Interest and Solicitation

    Kelly v. Greason, 23 N.Y.2d 368 (1968)

    An attorney must disclose any potential conflicts of interest to all affected parties and obtain their consent before proceeding with representation; however, even with disclosure and consent, representation is impermissible if the conflict is too profound or if other policy reasons preclude it.

    Summary

    Attorneys Kelly and Whalen faced disciplinary action for allegedly representing conflicting interests and stirring up litigation. Whalen, while working as an insurance adjuster for Nationwide, partnered with Kelly, who handled claims against Nationwide. The court found insufficient evidence of improper solicitation but acknowledged the potential conflict of interest. The Court of Appeals remanded the case to determine if clients were fully informed and consented to the dual representation, and to assess the extent of any actual conflict, emphasizing the high standard of undivided loyalty attorneys owe their clients. The charges of improper loans and withholding payments were dismissed.

    Facts

    Kelly and Whalen formed a law partnership in 1958. Whalen worked as an insurance adjuster for Nationwide Insurance Company from 1959 to 1962. The partnership handled claims for Nationwide insureds referred by Nationwide employees or brokers. They also handled negligence liability claims against Nationwide for claimants referred by auto repairmen and others. Whalen, as an adjuster, was assigned to claims instituted by the partnership in only two instances.

    Procedural History

    The Appellate Division, Second Department, authorized a judicial inquiry into attorney conduct in Nassau County in 1959. In 1963, disciplinary proceedings were instituted against Kelly and Whalen. The Special Referee sustained charges against both attorneys for conflict of interest and stirring up litigation. The Appellate Division confirmed the report, except for one specification, and suspended both attorneys for two years. Kelly and Whalen appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the attorneys engaged in professional misconduct by representing clients with interests potentially adverse to Nationwide Insurance Company while Whalen was an employee of Nationwide.

    2. Whether the attorneys improperly solicited cases and stirred up litigation through referrals.

    3. Whether loans made to referrers constituted an improper consideration for referrals.

    4. Whether the attorney improperly withheld payments to a physician.

    Holding

    1. No, not definitively because the record was insufficient to determine if the clients were fully informed and consented to the potential conflict. Remanded for further inquiry.

    2. No, because there was insufficient evidence to prove improper solicitation.

    3. No, because the finding that the loans were consideration for referrals was not supported by the evidence.

    4. No, because the mistake was unintentional.

    Court’s Reasoning

    The court emphasized the undivided loyalty an attorney owes to a client. The court acknowledged the potential conflict of interest in representing claimants against Nationwide while Whalen was also an employee. The attorneys had the burden of showing full disclosure to, and consent by, the parties involved. Although the petitioner conceded full disclosure to Nationwide, there was no evidence of disclosure to the clients. The court remanded the case to enable the lawyers to show that full disclosure was indeed made to their clients and consent obtained, if that was the case.

    The court clarified that even with disclosure and consent, representation is impermissible if there’s a substantial likelihood of profound conflict or other policy reasons. The court found insufficient evidence to support the finding that respondents had improperly solicited cases or stirred up litigation.

    Regarding the loans, the inconsistency was reasonably explained by the passage of time, not as a product of intentional falsehood. Concerning the withheld payment, the court reasoned Kelly was under no legal obligation to ensure payment of Dr. Coren’s bill, and the mistake on the closing statement was unintentional. The court upheld the compelled disclosure of the law firm’s records by subpoena, citing Matter of Zuckerman.

    Justice Breitel stated, “Under such circumstances the lawyers were obliged to come forward and dispel the apparent impropriety by showing prior full disclosure to and consent by the parties.”