Something about ethical standards

Ethical standards are clear and precise so that any attorney knows beforehand what conduct is unacceptable.

Attorney John Smith [his real name kept secret] knowingly and willfully committed the following violations and crimes:

1. Mr. John Smith knowingly entered my property without my consent and without a legal right to do, also known as a simple trespass.
2. The video record clearly shows that Mr. John Smith put his yellow envelope inside the property of the United States Postal Service, which is a federal crime. (See 18 U.S.C. §1725).
3. Mr. John Smith did not meet me personally on this or any other day, but he affirms under penalty of perjury that he “served a true copy of annexed affirmation in opposition along with supporting papers upon the plaintiff by delivering the same personally to the person or entity and at the address indicated below.” By doing so, Mr. John Smith perjured himself.
4. Finally, Mr. John Smith, knowingly and willfully, attached a forged page from the lease that forms the parties’ underlying dispute as Exhibit A to his Reply to my summary judgment motion, in contravention of the Supreme Court’s prior ruling. See Tamburello v. Tamburello, 85 N.Y.S.3d 199 (2d Dep’t 2018).

Mr. John Smith’s frivolous conduct placed his license in jeopardy. The same frivolous conduct prohibited by the Court Rules can result in the professional discipline and suspension of a lawyer for violating the Rules of Professional Conduct. These violations are sufficiently unethical and unprofessional, and as a result, incompatible with the legal representation required in this proceeding. According to 22 CRR-NY sections 130-1.1 and 130-1.2, the court may impose such financial sanctions against either an attorney or a party to the litigation or against both. The lack of legal or factual basis was apparent, should have been apparent, and was brought to the attention of Mr. John Smith and his client.

This legal position was confirmed and supported by the Appellate Division of the New York State Supreme Court:

1. A lawyer was suspended for six months for, among other things, frivolous litigation. Matter of Gurvey, 102 AD3d 197 (1st Dept 2012);
2. A lawyer was suspended for one year for the pursuit of fraudulent and meritless litigation. Matter of Rosenberg, 97 AD3d 189 (1st Dept 2012);
3. The Appellate Division affirmed an order which imposed sanctions upon the defendant and his lawyer in the amount of $10,000 each. The defendant submitted an affidavit to the court that was intentionally misleading. This deliberately misleading representation was properly found to be sanctionable, as related to material facts on a pending motion. Capetola v. Capetola, 947 N.Y.S.2d 94 (1st Dep’t 2012);
4. This counsel was sanctioned by the Appellate Division. In imposing sanctions, the court characterized the counsel’s conduct as “inexcusable” since his position ran counter to all established precedents. McMurray v. McMurray, 557 N.Y.S.2d 149 (2d Dep’t 1990),

SUMMARY OF RELEVANT FACTS AND PROCEDURAL HISTORY:

[All factual and personal information will be kept secret.]

Even though the lease expired on January 31, 2017, the defendant did not vacate the premises. Instead, the defendant occupied my property, without my permission nor any payment for possession, during all of February 2017 and 21 days of March 2017. Before the defendant moved out, she intentionally caused major damages to the property: she flooded my house with water, cut electrical wires, poured cement down the drain, drilled steam heating pipes, destroyed the wood floor in the living room, made the ceiling collapse in the basement, and committed many other acts of vandalism. My home insurance covered most of the damage. Then the insurance company canceled my policy due to claim history.

Transcripts dated December 19, 2016, and February 15, 2017, clearly and unequivocally demonstrate the exact termination date of the lease. That date was January 31, 2017.

“The defendant, through her attorney, moved to set aside the agreement contending, in effect, that there had been a novation such that the agreement had been replaced by an affidavit of support. The Appellate Division found that the conduct of the defendant’s attorney was frivolous. He continued to advance his contention relating to the affidavit of support, which was without merit in law, in contravention of the Supreme Court’s prior ruling”.

Tamburello v. Tamburello, 85 N.Y.S.3d 199 (2d Dep’t 2018)

I commenced Holdover Proceeding on February 1, 2017.

In his Answer Defendant’s attorney, Mr. John Smith confirmed the conditions of the actual second lease, adding that “the lease annexed was not set to expire until January 31, 2017.”

The defendant moved out of the premises on the night immediately before our Eviction hearing. The hearing was scheduled for March 22, 2017. The defendant vacated the premises on March 21, 2017. Mr. John Smith represented her during the Eviction case.

This action was commenced on June 23rd, 2020 by summons and complaint. Mr. John Smith was again retained by the defendant to represent her in this proceeding.

However, in his Answer on September 11, 2020, Mr. John Smith and his client fraudulently reference and rely on terms of a lease that never existed. The defendant’s answer contradicts the testimony previously given by Mr. John Smith. The alleged “copy” of lease two, which the defendant attached as Exhibit A to her opposition to my summary judgment motion dated September 11, 2020, is a forgery. It shows that Mr. John Smith knowingly made a false and misleading statement under oath in a signed legal document.

“Sanctions have been granted for frivolous conduct based on a party’s false testimony at trial as to a material issue”.

Sanders v. Copley, 605 N.Y.S.2d 281 (1st Dep’t 1993).

According to Kramer v. Berardicurti, 913 N.Y.S.2d 856 (4th Dep’t 2010), legal counsel should be put on notice by the other party that a sanction is being sought or contemplated, and the attorney has the right to be heard, See Breslaw v. Breslaw, 619 N.Y.S. 2d 323 (2nd Dep’t 1994).

CONCLUSION:

Both Mr. John Smith and his client have so badly abused the judicial system in this action that anything less than an imposition of harsh sanctions will embolden them to continue their conduct. What is most disturbingly evident from the transcripts is that Mr. John Smith and his client knew my action had been confirmed by the previous Supreme Court hearings. I believe that sanctions against the defendant and her counsel are proper and necessary, and I hereby put Mr. John Smith on notice that I am seeking a sanction against him.

THEREFORE, Plaintiff, Karina Duvall respectfully requests that the Court:

1. Impose appropriate sanctions on the defendant in the amount of $5,000 for her misconduct.
2. Impose appropriate sanctions on the defendant’s attorney, Mr. John Smith, in the amount of $10,000 for every single occurrence of the attorney’s misconduct.
3. Refer Mr. John Smith to the attorney disciplinary committee to investigate his conduct;
4. Refer Mr. John Smith to the district attorney’s office to investigate his crimes;
5. Award the Plaintiff reasonable costs associated with the motion.