Don t Leave Without Your Ethics Christopher A. Guetti, Flink Smith Law LLC
Self-Serving and Sham Affidavits in New York
Self-Serving Affidavit Plaintiff cannot create an issue of fact defeating summary judgment by submitting his own selfserving affidavit which contradicts prior sworn testimony. Cole v. Rothe, 18 A.D.3d 1058, 795 N.Y.S.2d 373 (3 rd Dept. 2005). Inasmuch as a nonmovant cannot avoid summary judgment by alleging issues of fact created by self-serving affidavits contradicting prior sworn deposition testimony. Valenti v. Exxon Mobil Corp., 50 A.D.3d 1382, 1384, 857 N.Y.S.2d 745, 747 (3 rd Dept. 2008). While issues of fact and credibility may not ordinarily be determined on a motion for summary judgment, where, as here, the self-serving affidavits submitted by plaintiff in opposition clearly contradict plaintiff's own deposition testimony and can only be considered to have been tailored to avoid the consequences of her earlier testimony, they are insufficient to raise a triable issue of fact to defeat defendant's motion for summary judgment. Phillips v. Bronx Lebanon Hosp., 268 A.D.2d 318, 320, 701 N.Y.S.2d 403, 405 (1 st Dept. 2000).
Even without underlying a deposition In support of reargument, plaintiff contends that the Court's dismissal of the amended complaint was premature because plaintiff had not received all of the documents she had requested and she was prevented from conducting any party or non-party depositions on the issue of notice, while the Equinox defendants were afforded that opportunity. Plaintiff claims that the self-serving affidavits of select managerial personnel that they had no prior notice of a sexual assault, does not entitle defendants to summary judgment. Where (i) information necessary to oppose the summary judgment motion is within the exclusive knowledge of the movant and (ii) the movant had not yet been deposed, a summary judgment motion should be denied as premature. Motion by plaintiff to reargue this Court's decision... granted. Jessica H. v. Equinox Holdings, Inc., 2010 NY Slip Op 30970(U), (NY Co. Sup. Ct.) Plaintiff claims that the "uncontroverted testimony" of the plaintiff warrants the relief sought. However, defendants have not had the opportunity to discover any evidence in order to controvert plaintiff's self-serving affidavit... The remaining defendants should be permitted the opportunity to depose plaintiff and complete discovery pertaining to the circumstances surrounding plaintiff's alleged descent and shifting of the ladder, and explore a defense to this claim, prior to the award of summary judgment in plaintiff's favor. Haddock v. Turner Constr. Co., 2009 NY Slip Op 32055(U) (NY Co. Sup. Ct.)
Use Violates Ethics Rules of Conduct New York Rules of Professional Conduct Rule 3.1 Non Meritorious Claims and Contentions 3.1(a) a lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous. 3.1(b) A lawyer s conduct is frivolous for purposes of this rule if: 3.1(b)(3) the lawyer knowingly asserts material factual statements that are false.
Ethical Issues and Candor Before the Court on Law and Fact
New York Rules of Professional Conduct Rule 3.3 Conduct before a Tribunal (a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose to the tribunal controlling legal authority known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (3) offer or use evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
Advocate s Duty of Candor to the Tribunal Cont d Comment 2 to Rule 3.3: This Rule sets forth the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the adjudicative process. A lawyer acting as an advocate in an adjudicative proceeding has an obligation to present the client s case with persuasive force. Performance of that duty while maintaining confidences of the client, however, is qualified by the advocate s duty of candor to the tribunal. Consequently, although a lawyer in an adversary proceeding is not required to present an impartial exposition of the law and may not vouch for the evidence submitted in a cause, the lawyer must not allow the tribunal to be misled by false statements of law or fact or by evidence that the lawyer knows to be false.
Expectation During Litigation Comment 4 to Rule 3.3: Although a lawyer is not required to make a disinterested exposition of the law, legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal. Paragraph (a)(2) requires an advocate to disclose directly adverse and controlling legal authority that is known to the lawyer and that has not been disclosed by the opposing party. A tribunal that is fully informed on the applicable law is better able to make a fair and accurate determination of the matter before it. [T]he court notes that, although vigorously supplying the court with decisions favorable to their position, plaintiffs have not provide the court with the well-reasoned decision in Whitehurst v. Gandy... where the court found that defendants had made a sufficient showing that discovery of the parents educational, employment and psychological records were relevant and material based upon expert affidavit.... in which the plaintiff was represented by the same counsel. Adams v. Rizzo, 13 Misc.3d 1235, n.6 (Onandoga Co. 2006).
Introduction to the New York Uniform Disciplinary Rules
Adoption of a New Standard On December 29, 2015, Chief Judge Jonathan Lippman announced the adoption of new uniform statewide rules to govern New York s attorney disciplinary process by the four Departments of the New York State Supreme Court, Appellate Division. The new rules, provide a harmonized approach to the investigation, adjudication and post-proceeding administration of attorney disciplinary matters. They were promulgated as Part 1240 of the Rules of the Appellate Division (22 NYCRR Part 1240) and took effect in July 1, 2016.
Main Areas of Change in the New Rules Formal Proceedings - Proceedings inthe Appellate Division Pleadings Discovery Discipline by Consent Hearing Informal Discipline Proceedings Before Committee s Related Proceedings, i.e. interim suspension, diversion, criminal conviction, reciprocal discipline, reinstatement, collateral estoppel
Formal Proceedings The issuance of formal charges entails a probable cause determination, following a committee staff's investigation and recommendation that a lawyer's alleged misconduct is sufficiently serious to warrant a "due process" hearing in which the staff invariably seeks public discipline-censure, suspension or disbarment The Uniform Rules explicitly providedisparate that formal proceedings are to be instituted pursuant to a determination of the Attorney Grievance Committee. The rules define the committee, which is appointed in each department
Pleadings Notice of petition and petition which the Committee shall serve upon the respondent in a manner consistent with Judiciary Law 90(6), and which shall be returnable on no less than 20 days' notice An answer A reply Major change is the involvement of the Court system
Disclosure Disclosure obligations Exchange of witness lists and documents that the parties intend to use at a hearing as set forth in the statement of disputed facts discussed above. Was a relatively routine (in some departments) and informal, pre-hearing practice. Issuance of subpoenas Mirrors the existing rule in the First and Second Departments Upon application by either party, the clerk of the court may issue a trial subpoena returnable before the court or the referee assigned to conduct a hearing.
Discipline by Consent Authorizes plea bargaining at anypoint after the filing of formal charges Rule envisions, (1) a stipulation of facts, (2) conditional admissions as to acts of professional misconduct and the concomitant violation of the Rules of Professional Conduct, (3) a statement of relevant (agreed) aggravating and mitigating circumstances (including prior disciplinary history, if any), and (4) an agreed disposition including, if warranted, monetary restitution as authorized by Judiciary Law 90(6-A).
Discipline by Consent cont d Following an agreement, the procedure resembles a traditional resignation. The court, in its discretion, may accept or reject the joint motion, and if rejected, the entire matter is referred back to the committee for a hearing before a referee, and the conditional admissions are deemed withdrawn and cannot be used against the respondent.
Hearing Express consideration of applicable case law and precedent, as well as reference to the American Bar Association's Standards for Imposing Lawyer Sanctions. By endorsing advocacy that cites case precedents, the ABA standards, and other relevant factors in determining the level of discipline to be imposed, the courts recognize that disciplinary decisions should henceforth more closely resemble the First Department's long tradition of detailed, reasoned opinion as contrasted with the somewhat perfunctory or formulaic determinations often issued in other departments. Changes in the hearing process for some of the Departments
Informal Discipline Non disciplinary Action - Committee they may issue a Letter of Advisement to the respondent (1240.7(d)(2)(iv)). Private Disciplinary Action If the respondent has engaged in professional misconduct, but public discipline is not required to protect the public, maintain the integrity and honor of the profession, or deter the commission of similar misconduct, the committee may issue a written Admonition clearly stating the facts forming the basis for such finding, and specific rule or standard that was violated. Standard - Fair preponderance of the evidence
Issues of Concern with New Uniform Rules Gaps in the uniform rules are also of concern. Nowhere do the uniform rules address (and standardize) the disparate practices among the departments with respect to allowing oral argumentbefore the court. More involvement of the Appellate Divisions that may cause additional delay
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