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In re Santalone11/19/2002
This opinion is uncorrected and subject to revision before publication in the Official Reports.
(*1)
M-3871, M-4223
Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department. Respondent, as James Santalone, was admitted to the Bar at a Term of the Appellate Division of the Supreme Court of the First Judicial Department on March 4, 1991.
(*2)
M-3871-August 12, 2002
M-4223
Respondent James Santalone was admitted to the practice of law in the State of New York by the First Judicial Department on March 4, 1991. Respondent maintained an office for the practice of law within the First Judicial Department at all times relevant to these proceedings.
The Departmental Disciplinary Committee has moved for an order confirming the findings of fact and conclusions of law of the Referee and the determination of the Hearing Panel rendered on charges alleging that respondent violated the New York Code of Professional Responsibility Disciplinary Rules 2-103(b) and 1-102(a)(5) by paying a fee to a third party for referring a personal injury client during a "sting" operation, and imposing whatever sanction the Court deems appropriate. Respondent has cross-moved to, inter alia, confirm the determination of the Hearing Panel except to the extent that it found he violated DR 1-102(a)(5).
We confirm the findings of fact and conclusions of law of the Referee and the determination of the Hearing Panel.
The facts are not in dispute. During October of 1996, the Special Investigations Unit of the Kings County District Attorney's Office ("DA Office") conducted a "sting" operation which resulted in the arrest of respondent and other attorneys for making payments to third parties for client referrals.
(*3) On October 9, 1996, respondent took a phone call from Vince Connor, an informant for the DA's office. Connor told respondent that he had a potential client for him who suffered a broken leg in a car accident. At the time, respondent had not met Connor, knew nothing about Connor, and did not know who gave Connor his name. Nevertheless, respondent told Connor, in this phone conversation, If the client required surgery, he would pay [Connor] $2,000 for the referral, if the client did not require surgery, $1,000.
Connor told respondent that the client's name was "Griffin" and that it was an automobile accident. Later that same day, "Griffin," an investigator, met with respondent and executed a retainer agreement with respondent.
On October 11, 1996, in a phone conversation, respondent told Connor that he would pay Connor for referring Griffin $500 that day and an additional $500 the following Monday. Later that day, Connor picked up an envelope containing $500 from respondent's paralegal assistant at the law office. Respondent either knew or should have known that such a payment for a referral was unlawful, and violated DR 2-103(B).
The Referee in his report and recommendation wrote:
In short, while respondent's case involves but a single instance misconduct, it is devoid of any of the mitigating factors which the court considered in Setareh. Except for five character letters submitted after the hearing, and respondent's self-serving testimony as to contrition and remorse, which to this observer appeared cavalier and rehearsed. He offered no evidence in mitigation of his unlawful conduct; which he referred to as `a lapse of judgment'.
Respondent's affect and demeanor, his vagueness as to facts, and evasiveness and non-responsive answers during his (*4)testimony, except
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