June 03, 2019 Articles

Silly Lawyer Tricks XVI

Appeals of attorney fee awards sometimes lead to unwanted results.

By Tom Donlon

This is the latest column in our continuing series on real mistakes and misdeeds by real lawyers in cases on appeal.

In re McCoobery, 93 N.Y.S.3d 45 (N.Y. App. Div. 2019)

This case was brought to my attention by our longtime website editor and subcommittee chair, Sandy Hausler. Thanks for the heads-up, Sandy—and for all you have done for the committee over the years.

The attorney in this case had been admitted to practice for over 20 years, the last 11 with the same firm. For all that time, he had a spotless disciplinary record. Yet when his father was diagnosed with a terminal illness, he apparently could not cope, which led to his sanction for conduct in two separate appeals.

In the first appeal, the attorney was tasked with preparing an appellee’s brief. He drafted the brief and then filed it, without the responsible partner’s knowledge. Later, when the partner asked about the brief, instead of admitting that he had already filed it, the attorney gave the partner what he claimed was a draft. The partner reviewed it and made revisions, which were never filed. Eventually, the partner discovered what happened.

In the second case, the attorney was tasked with sending a brief and record on appeal to the printer for filing and service. The attorney sent the brief but did not instruct the printer to file and serve it, so the brief never reached the court. To cover up this failure, the attorney told the partner that the attorney had stipulated to allow opposing counsel an extension to submit the appellee’s brief. When that time was up, the attorney “fabricated an opposition brief which he provided to the partner as though it were genuine.” He also fabricated an email chain to make it appear that the made-up brief came from opposing counsel. The partner then drafted a reply, responding to the arguments in the made-up brief, and even shared the reply with the client.

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