An attorney who ducked and weaved for years to avoid paying a malpractice judgment was given a second chance last week, but with conditions.
Southern District of New York Judge Denise Cote sentenced David A. Dorfman to two years of probation for criminal contempt, a charge that was brought only because the judge became so frustrated with Dorfman that she asked prosecutors to intervene and indict him.
"What is important to me is that I understand that Mr. Dorfman today evaluates that past conduct accurately, so going forward he is going to change that behavior," Cote said.
Dorfman's troubles began in 1994, when, just 27 years old and two years removed from Boston University School of Law, he was hired by Ricky Baker, who wanted to sue New York City after he had been misdiagnosed as HIV-positive.
Baker contended that he hired Dorfman because the lawyer claimed he had founded a "dynamic" law practice and falsely represented that he had created the healthcare L.L.M. program at New York University School of Law and acted as counsel to health care companies.
Dorfman filed suit on Baker's behalf in March 1995, after the one-year-and-90-day deadline for filing had expired. That suit was thrown out.
In 1999, in Baker's malpractice suit against Dorfman, a jury verdict was confirmed awarding Baker $360,000 in compensatory damages and $25,000 in punitive damages for malpractice. Dorfman was censured for his conduct in 2003.
The attorney tried to shield his income from the verdict by first forming a professional limited liability corporation and then by declaring bankruptcy. Baker filed suit in the Southern District of New York and won a judgment declaring the limited liability corporation a successor in interest to Dorfman's practice.
Less than a year later, Dorfman declared bankruptcy. Baker intervened and won a decision that the debt was not dischargeable in bankruptcy.
Baker then reached agreement on a payment plan with Dorfman, but when the payments stopped coming, Baker and his attorney, Gregory Antollino, filed suit again in the Southern District.
Blocked in court, Dorfman again agreed to a monthly payment plan to satisfy Baker's judgment. Judge Cote agreed to allow Dorfman to sell his firm to attorney Gregory Koerner, to work for Koerner for $55,000 a year, to accept strict limits on his personal and professional expenses, and to send monthly financial reports to the court and opposing counsel.
But the judge reached the end of her patience in April 2006 when she found that Dorfman had apparently violated several aspects of the order she fashioned to ensure that Baker received the payments due him. She asked the U.S. Attorney's Office to step in and prosecute Dorfman criminally.
The judge insisted on these measures because of what she once termed Dorfman's "elaborate and sometimes fraudulent efforts" to avoid paying the judgment.
Dorfman last week was aided by Maranda Fritz of Hinshaw & Culberston, who clearly decided that revisiting the past 13 years or trying to spin her client's behavior was not the way to go.
Fritz first said that there were many aspects of Dorfman's conduct that might appear inappropriate. But then she stopped herself and said, "What am I talking about -- they look inappropriate to me."
She added, "I'm in a real Catch-22 here in trying to explain the conduct that occurred."
Instead, Fritz could only speak to her positive experience with Dorfman over the past two years she has served as his attorney. She also cited the fact that he already had been disciplined and still faces additional discipline that could end in the loss of his law license.
"David is a person who has enormous issues. He is deeply flawed in his ability to concentrate on issues that give him enormous stress," Fritz said, adding that over the last two years she has witnessed "an individual who desperately wants to make this right."
Dorfman, she said, has suffered a serious illness, gotten married and "tried again to continue to build his law practice."
Fritz explained that Dorfman's employment by Koerner ended in June, but that she had found another attorney who specializes in elder law to work with and supervise Dorfman, as long as Dorfman avoided a prison sentence.
That was accomplished last week, although Judge Cote also ordered Dorfman to spend six nights of community confinement in a halfway house before June 2008. The judge decided against a fine because she said that every possible penny earned by Dorfman should go to Baker.
The judge reminded Dorfman, "You are a lawyer," and said he had a responsibility as "a human being" to his clients and to his community.
Dorfman addressed the court briefly.
"I'm not sure exactly what to say except that I am sorry," he said.
Informed of Cote's decision, Antollino, Baker's lawyer, said the sentence was "fair."
"I think some jail time would have been good but I'm not going to second-guess the judge on that," Antollino said. "In the end, it's a tragedy for Ricky Baker and it's a tragedy for David Dorfman. He basically ran his career into the ground in order to avoid judgment."
