Friedman, Matter of
| Decision Date | 22 March 1994 |
| Parties | In the Matter of Theodore H. FRIEDMAN, (admitted as Theodore Herzl Friedman) an attorney and counselor-at-law. Departmental Disciplinary Committee for the First Judicial Department, Petitioner, Theodore R. Friedman, Esq., Respondent. |
| Court | New York Supreme Court — Appellate Division |
Kenneth M. Bernstein and Jonathan K.M. Crawford, of counsel (Daniel L. Brockett, Sp. Trial Counsel, Hal R. Lieberman, attorney), for petitioner.
Marvin E. Frankel and Michael S. Ross, of counsel (Kramer, Levin, Naftalis, Nessen, Kamin & Frankel, attorneys), for respondent.
Before MURPHY, P.J., and SULLIVAN, CARRO, ASCH and RUBIN, JJ.
Respondent, Theodore H. Friedman was admitted to the practice of law in New York by the First Judicial Department on April 1, 1957 under the name Theodore Herzl Friedman. At all times relevant herein respondent has maintained an office for the practice of law within the First Judicial Department.
Respondent was served with a Notice and Statement of Charges which allege twenty-three separate counts of professional misconduct stretching over a decade and arising out of respondent's representation of personal injury claimants in three separate matters: (1) Mowen v. Yangming Marine Transport Corp., 78 Civ. 5537 (Counts 1-6); (2) Estate of Miriam Krieger v. City of New York, Supreme Court, New York County (Index No. 8228/80) (Counts 7-17); and (3) Hill v. Soley, Supreme Court, Bronx County (Index No. 18762/82) (Counts 18-23).
Pursuant to 22 N.Y.C.R.R. §§ 603.4(b) and (d), and the Committee Rules, Hon. Donald J. Sullivan was appointed by this Court to serve as Special Referee.
Hearings were held before the Special Referee on twenty-six days commencing on July 1, 1990 and ending on May 22, 1992. The transcript of the proceedings runs over 5,000 pages. Thirty witnesses testified, including two preeminent ethics experts (one for each side). During the course of the hearings the following facts were adduced and conclusions reached.
Respondent represented the plaintiff Lorraine Mowen in a wrongful death action arising out of a ship collision in which her husband, Dennis Mowen, lost his life. The respondent was assisted in this matter by his then partner, Jethro M. Eisenstein and by Frederick J. Cuccia of the firm of Cuccia and Oster. The trial took place before the Hon. Pierre N. Leval of the United States District Court for the Southern District of New York in late 1981 and early 1982. During the trial, a report by an expert called by respondent was marked for identification, as PX-337(B). Judge Leval would not allow PX-337(B) in evidence, but ruled that the respondent could use it argumentatively in his summation. After the jury commenced their deliberation a note was received from them requesting the trial exhibits. The trial court instructed the exhibits in evidence be collected and delivered to the jury and repeated the admonition about Exhibit 337(B) which was used in summation but was not in evidence in chief. Thereafter, the jury returned a verdict in favor of the plaintiff and shortly after the announcement of the jury's verdict, it was discovered that PX-337(B) had been given to the jury. Respondent thereafter submitted an affidavit, sworn to March 8, 1982, in which he placed the entire responsibility for sending PX-337(B) to the jury room on his co-counsel, Mr. Cuccia. Respondent stated that Mr. Cuccia had sent the exhibit into the jury room, in the mistaken belief that it was part of the evidence received. Respondent, however, made no effort to communicate with Mr. Cuccia before submitting this affidavit, casting the blame on him, and no affidavit was submitted by Mr. Cuccia, who was abroad from March 7 to March 17, 1982 and who knew nothing of respondent's affidavit at that time.
After a hearing, in an opinion dated December 3, 1982, Judge Leval found respondent to have engaged in the "willful misconduct of ... tampering with the evidence transmitted to the deliberating jury." Judge Leval stated that respondent had "surreptitiously includ[ed] among the exhibits to be sent to the jury an exhibit marked for identification that he well knew had not been received in evidence." Judge Leval concluded that when the jurors were deliberating and asked for all evidence in the case, respondent caused the exhibit to be sent to them "intentionally and with full awareness that it was in violation of the court's order and rulings as to the receipt of the exhibit." Judge Leval rendered an opinion that based upon the transcripts respondent had lied during the hearing claiming that he had left the courtroom for lunch and had entrusted his co-counsel, Mr. Cuccia, to handle the exhibits that were sent to the jury. (Red Star Towing & Transp. Co. v. "Ming Giant", 552 F.Supp. 367 at 382-386 [1982].
Pursuant to a letter of complaint from Judge Leval, four separate charges were filed against respondent in a Federal Disciplinary Proceeding. Thereafter, at the Federal disciplinary hearing on January 9, 1985, respondent, pursuant to a plea bargain agreement, admitted the second charge, namely that he prepared, swore and caused to be served an affidavit without personal knowledge of the facts therein, in exchange for dismissal of the other federal disciplinary charges. On November 4, 1985, the Committee on Grievances of the Southern District recommended a sanction that a formal letter of reprimand be issued to respondent and that this letter be made a matter of public record. A subsequent letter of censure was written and distributed by Judge Vincent L. Broderick, Chairman of the Committee on Grievances on June 23, 1986.
Thereafter, the Departmental Disciplinary Committee filed a petition in this Court seeking the imposition of reciprocal discipline pursuant to 22 N.Y.C.R.R. § 603.3. Respondent objected to the imposition of discipline greater than that imposed by the federal disciplinary committee. By order entered February 20, 1987, this Court denied the Committee's petition and directed that the Mowen matter be referred to the Departmental Disciplinary Committee "for investigation and hearings, if necessary, as to all the issues raised."
The essential elements of Count One are that respondent intentionally caused to be placed into the jury room, during deliberations, an exhibit (PX-337B) when he knew that same had not been received in evidence, and the placing of said exhibit was done with full awareness that it was in violation of the Court's order and ruling as to the receipt of the exhibit in evidence.
Viewing all of the evidence under a "fair preponderance" standard, the Special Referee found that the Committee had failed to establish that respondent intentionally sent exhibit 337(B) to the jury room. As such, Count One was not sustained.
This Count concerned false statements made by respondent in his affidavit dated March 8, 1982, which respondent prepared, swore and caused to be filed in the Mowen action in response to the post-trial motion concerning the discovery of the unauthorized exhibit in the jury room. Specifically, respondent was charged with swearing to facts, to wit, that Cuccia was responsible for sending the unauthorized exhibit into the jury room, about which he had no personal knowledge or factual basis, direct or indirect. Thus, it was alleged that respondent violated DR1-102(A)(5) (engaging in conduct prejudicial to the administration of justice); DR1-102(A)(6) (engaging in conduct that adversely reflects on his fitness to practice law) and DR7-106(C)(1) ( or alluding to any matter that he has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence).
The essential elements of Count Two, except for slight modification, are word-for-word identical to the second charge issued by the Federal Grievance Committee to which respondent admitted and for which he was sanctioned. Relying on that admission by respondent, the Special Referee sustained Count Two.
Count Three alleges that respondent acted with reckless disregard for the truth in making false statements about Cuccia in his March 8, 1982 affidavit without making any effort to verify them with Cuccia. As a result of his actions respondent was charged with violating DR1-102(A)(5) and DR1-102(A)(6).
In the alternative, Count Four alleges that respondent knowingly made false statements in his affidavit dated March 8, 1982. As a result, respondent was charged with violating DR1-102(A)(4), DR1-102(A)(5), DR1-102(A)(6), DR7-102(A)(5) (knowingly making a false statement of law or fact in his representation of a client), DR7-102(A)(6) (participating in the creation or preservation of evidence when he knows or it is obvious that the evidence is false), and DR7-102(A)(8) (knowingly engaged in other illegal conduct or conduct contrary to a Disciplinary Rule during his representation of a client).
Respondent's admission to the second Federal disciplinary charge that he had no personal knowledge or factual basis for asserting in his affidavit that Cuccia was responsible for putting Exhibit 337B in the jury room and that Cuccia had acted in the good faith belief that it was proper to send in the exhibit was relied upon.
In addition, in May of 1987, respondent waived immunity and testified before a Manhattan grand jury concerning the Krieger case. The prosecutor cross-examined respondent on various matters including the affidavit he submitted in the Mowen case. During his testimony before the grand jury, respondent admitted that his affidavit blaming Cuccia was false.
In addition to the false statements about Cuccia, it was alleged that respondent's affidavit contained numerous other false or misleading statements of material fact...
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