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In re Wiss (N.Y.App.Div. 01/29/2004)
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NEW YORK SUPREME COURT1/29/2004
This opinion is uncorrected and subject to revision before publication in the Official Reports.
M-4551
Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department. Respondent, as Scott Lawrence Wiss was admitted to the Bar of the State of New York at a Term of the Appellate Division of the Supreme Court for the Second Judicial Department on December 11, 1991.
Respondent was admitted to the practice of law in New York by the Second Judicial Department on December 11, 1991. At all times relevant to the charges, he maintained an office for the practice of law within the Second Judicial Department; however, respondent currently maintains his law office within this Judicial Department.
Respondent was charged in an indictment filed on December 3, 2001 in Supreme Court, Queens County, with insurance fraud in the third degree, a class "D" felony, in violation of Penal Law § 176.20; employing an individual to illegally solicit clients in violation of Judiciary Law § 482; and notary public fraud in violation of Executive Law § 135-a(2). On October 10, 2002, respondent pleaded guilty to the reduced charge of insurance fraud in the fifth degree, a class A misdemeanor (Penal Law § 176.10), in full satisfaction of the charges. On that same date respondent was sentenced to a one year conditional discharge and directed to make restitution in the sum of $5,000, which has been paid.
By an unpublished order entered February 3, 2003, this Court granted the Departmental Disciplinary Committee's motion and determined that respondent had been convicted of a "serious crime" and directed a hearing be held regarding the appropriate sanction.
A Hearing Panel held a hearing on April 10, 2003, at which respondent presented the testimony of four character witnesses and also testified on his own behalf and fully admitted the misconduct that resulted in his misdemeanor plea. At the conclusion of the hearing, counsel for the Committee and respondent jointly recommended a six-month suspension. In its report dated September 17, 2003, the Panel recommended respondent be suspended for a period of nine months.
The charges against respondent arose from a fictitious personal injury case involving an individual named "Joseph Rousseau", who was an undercover officer investigating insurance misconduct at a medical clinic. On January 10, 2001, respondent sent one of his paralegals, Boris Aliev, to meet with a potential client, Joseph Rousseau, who was being treated at a Brooklyn medical clinic. Someone from the clinic had called respondent's office indicating that the clinic had recommended his firm to Rousseau and that he wanted to meet with someone from respondent's firm at the clinic. Because respondent was unable to meet with Rousseau, he sent Mr. Aliev who had Rousseau sign several blank forms including a retainer agreement, a no fault application, standard medical releases and a notice of intent to make a claim. However, the medical releases and notice of intent to make a claim were never notarized as required. Two and a half months later, as the 90-day no-fault filing deadline approached, respondent "panicked" realizing that they had not been notarized and his firm unsuccessfully tried to reach Rousseau.
Respondent testified that he was concerned as to the consequences of his malpractice (and the several thousands of dollars in medical bills which would not be reimbursed), and told a staff member to falsely notarize the aforementioned documents using respondent's notary stamp, which also bore his signature. These forms were then filed with GEICO insurance company which was attempting to settle
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