In re Novins

Citations: 119 A.D.3d 37; 986 N.Y.S.2d 53

Court: Appellate Division of the Supreme Court of the State of New York; May 13, 2014; New York; State Appellate Court

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Gary R. Novins, admitted to the New York bar in 1993, worked at Ginarte O’Dwyer Gonzalez Gallardo Winograd LLP starting in February 2006, focusing on the personal injury case Bernardini v. City of New York. This case involved Bernardini, a police officer shot by another officer, Villarini, while off duty. The Ginarte firm served the City but failed to serve Villarini, leading to the City winning a summary judgment based on lack of notice of Villarini's dangerous behavior. On January 12, 2008, while an appeal was pending, Novins and Bernardini signed a Personal Services Agreement, which Novins drafted, under which Bernardini would pay Novins 45% of any recovery from the Villarini case or a malpractice claim against the Ginarte firm for their alleged failures in handling the case. Novins claimed that the fee was for his extraordinary efforts and willingness to assist Bernardini, while Bernardini contended he had not agreed to any additional compensation and had not discussed the agreement prior to its presentation. Novins later concealed this agreement from the Ginarte firm and initiated contact with Bernardini about the case and the agreement, expressing urgency and frustration over the lack of communication. He also misrepresented his employment status and threatened to discard evidence unless Bernardini responded to his calls.

Respondent left a voicemail indicating he would seek enforcement of an agreement upon leaving his firm, aiming to compel Bernardini to honor or renegotiate the agreement for financial recovery related to a malpractice claim. In April or May 2010, the Ginarte firm discovered respondent’s undisclosed side agreement with Bernardini but did not terminate him. By August 2010, after learning of respondent's voicemails to Bernardini, the firm deposed him, during which he retracted prior malpractice accusations. Subsequently, Bernardini filed a disciplinary complaint against respondent, leading to his termination by the Ginarte firm and the firm's own complaint against him. 

In 2012, the Departmental Disciplinary Committee charged respondent with six violations, including entering into an illegal fee agreement and acquiring an excessive proprietary interest in a client's cause of action, both contrary to various provisions of the Code of Professional Responsibility. Additional charges included witness compensation violations, dishonesty in concealing the agreement from the firm, making frivolous assertions, and conduct prejudicial to justice. Respondent admitted most facts but denied violations of specific rules, arguing mitigating factors to avoid discipline. A report by the Referee concluded that respondent acted unethically in having Bernardini sign the agreement and that his voicemails constituted serious professional misconduct.

The Referee acknowledged clear ethical violations but did not specify which charges to sustain or dismiss. The recommended sanction was a suspension of three to six months, citing the respondent's lack of prior violations and personal pressures as contributing factors. The August 23, 2013, Hearing Panel unanimously found charges one through four and six valid, dismissing charge five due to insufficient evidence. The Panel expressed concern over the respondent's attempt to charge a 45% contingency fee for work already compensated by the Ginarte firm and emphasized his duty of loyalty to both Bernardini and the firm. The respondent's misconduct was noted to have continued for 15 months through harassing communications. The majority of the Panel recommended a one-year suspension. The Committee seeks an order to confirm the Panel’s findings and impose at least a one-year suspension. The respondent requests confirmation of the Referee's findings with a recommendation for public censure or a shorter suspension. The Panel’s conclusions regarding the respondent’s liability for charges one through four and six were supported by credible evidence, including the respondent's admissions. Specific violations included seeking an excessive fee, inappropriate compensation as a witness, and failing to uphold his duty of loyalty. The threat to destroy evidence related to a malpractice claim, despite not being acted upon, also constituted misconduct. Weighing all factors, a one-year suspension is deemed warranted, supported by precedents of similar cases involving excessive fees and threats.

In the Matter of Kiczales, the respondent received a one-year suspension from practicing law due to serious misconduct involving accepting payments from an adverse party for information about a client and aiding in a favorable settlement. Previous cases highlight varying sanctions for misconduct, including a five-year suspension in Kiczales (2006), a three-month suspension in Nurse (2000) for threatening messages, and a six-month suspension in Muller (1997) for harassment. The respondent argued for mitigating factors, such as family psychological issues, financial difficulties, a clean 20-year disciplinary record, and efforts at rehabilitation. However, the Panel found these factors insufficient to warrant a reduced sanction, citing the serious nature of the violations motivated by financial gain and significant doubts about the respondent's acceptance of responsibility. The respondent's unethical advice to a client, along with threats related to a malpractice claim, reflected adversely on his fitness as a lawyer. The Panel also deemed the respondent's claims of mitigating circumstances as too remote to be relevant. Ultimately, the Committee's motion was granted, affirming the findings and imposing a one-year suspension effective 30 days from the ruling. The respondent was charged under both former Disciplinary Rules and current Rules of Professional Conduct due to the timing of the misconduct between January 2008 and May 2009.