Encounter With Client in Courthouse Stairwell Gets Manhattan Attorney Suspended
He “took my money, sex chat me, collected tone (sic) of pictures of my body parts, he had oral sex and he did [a] bad job on my case,” a former client of lawyer David G. Scudieri is quoted as having written to a grievance committee about him.
June 13, 2019 at 11:11 AM
7 minute read
The original version of this story was published on New York Law Journal
A Manhattan divorce and family law attorney has been suspended from practicing law after repeatedly sexting a female client he was representing in a child support matter, exchanging explicit photos with her, and eventually having a sexual encounter with her in a stairwell of a Lower Manhattan courthouse.
He “took my money, sex chat me, collected tone (sic) of pictures of my body parts, he had oral sex and he did [a] bad job on my case,” the client is quoted as having written to an attorney grievance committee about lawyer David G. Scudieri, according to an Appellate Division, First Department decision issued on Tuesday that suspends the lawyer for 18 months.
The Appellate Division's suspension of Scudieri focused on a court-appointed referee's finding that he'd violated three Rules of Professional Conduct, including one covering his sexting and exchanging sexually intimate photos with the female client for months, and another based on the stairwell sexual encounter, which the referee found was “brief, consensual and halted by” Scudieri, according to the decision.
According to Scudieri's testimony before the referee, at one point he admitted that he knew “having sexual relations with a client … has always been frowned upon in a domestic relations matter,” the panel wrote. He also has admitted that he knew having sexual relations with a client could destroy his career, the panel said.
Scudieri, a named partner at the boutique Manhattan firm Goldberg, Scudieri & Lindenberg, could not be reached for comment on Wednesday despite multiple attempts.
But his partner, Alan Goldberg, who is serving as Scudieri's counsel in the disciplinary matter, said by phone Wednesday that the firm “will follow the requirements of the Appellate Division's decision,” which suspends Scudieri beginning in July.
Asked to elaborate on what exactly following the decision would mean for the firm, Goldberg said only that “under the law, during the period of suspension, any suspended attorney cannot have any connection with the law firm or the practice of law whatsoever.”
Asked whether the law firm intends to terminate Scudieri or take other action against him, Goldberg said he had no comment.
Scudieri's former client, referred to only as Ms. A. in the decision, initially went to him in 2016 for help with obtaining a child support modification from the children's father. She also wanted help with compelling the father to sign documents allowing their children to get passports, the decision said.
But as the representation went on, Scudieri and Ms. A. began engaging “in a pattern of sexting/texting inappropriate messages and photos,” wrote the panel.
Later, after a March 23, 2017, court appearance in the child support matter, Scudieri and his client “went to a stairwell at 111 Centre Street [Manhattan Civil Courthouse] and engaged in physical contact of a sexual nature,” the panel wrote.
At some point after that, Ms. A. filed a grievance committee complaint against Scudieri. The complaint, though, focused “on [his] inability to obtain a favorable result in her child support matter and his refusal to refund her retainer,” the panel said while citing her testimony in August 2018 before the referee.
In fact, according to the panel, which pointed to Ms. A.'s testimony, “if [Scudieri] had satisfactorily resolved her case, she would not have complained about the texts, photographs and sexual conduct alleged.”
Once she “received [Scudieri's] answer to her [grievance committee] complaint,” however, she “submitted a reply in which she first revealed that [he] 'took my money, sex chat me, collected tone (sic) of pictures of my body parts, he had oral sex and he did [a] bad job on my case,'” the panel said, again quoting from testimony given to the referee.
Scudieri, in turn, did not contest that he'd repeatedly sexted and exchanged intimate photos with her.
Instead, noted the panel, he asked for findings of no liability while arguing, for instance, that the lack of a retainer agreement was only an “oversight, since his client lived out of state.”
He further contended that he “was not sure who had initiated the idea of sexting/texting and the exchange of photos, but argued that since these exchanges were consensual, although improper, they did not interfere with his representation, nor did it reflect adversely on his fitness and should not result in a suspension,” wrote the panel.
However, he “vehemently denied” the disciplinary charge based on the alleged stairwell encounter.
The referee, who was not named in the decision, found that the charge based on the sexting and exchanging of photos was “undisputed,” the panel said.
In addressing the third professional-misconduct charge based on the stairwell encounter, the referee found that the attorney and client had, in fact, “engaged in sexual conduct—albeit brief, consensual and halted by [Scudieri].”
On Tuesday, panel Justices John Sweeny, Sallie Manzanet-Daniels, Peter Tom, Barbara Kapnick and Peter Moulton confirmed the referee's report and recommendation for an 18-month suspension of Scudieri, a request that was six months shorter than what the committee had once suggested during the process but that matched what it later asked the panel for.
In doing so, the justices took up—and denied—Scudieri's cross-motion asking that “the report and recommendation of the Referee which sustained charge 3 of the petition and recommended an 18-month suspension” be disaffirmed.
The justices noted that charge based on the sexting and photos wasn't in dispute. They wrote that the “prime issue with charge 3 depends on the credibility of the witnesses, and we conclude that the findings of the Referee are fully supported by the record.”
In noting mitigating factors, the justices pointed out, apparently quoting from the referee's report, that Scudieri had had “a litany of family strife that impacted him during this period of representation … includ[ing] an acrimonious divorce, financial woes including the foreclosure on the mortgage of his home and alleged theft of funds from him and his father by his ex-wife.”
In addition, they noted that he'd expressed remorse and taken responsibility for his actions regarding the texting and photos; and that in 29 years of practicing law his disciplinary history consisted of only two prior, unrelated admonitions.
“The sexting and courthouse sexual encounter here was consensual, isolated in time and arguably would not be considered 'overreaching' with respect to Ms. A,” the justices wrote.
“However, [his] misconduct contravenes New York's strong public policy prohibiting lawyers from engaging in sexual relations with clients in domestic relations matters during the course of their representation,” they added, quoting Matter of Raab.
Earlier in the opinion, they'd also noted that one professional conduct rule at issue—improperly entering into sexual relations with a client during the course of the representation, in violation of Rules of Professional Conduct (22 NYCRR 1200.0) rules 1.5(d)(5)(ii), 8.4(h), and 1.8(j)(iii), respectively—“recognizes that because a sexual relationship between a lawyer and client creates the risk of impairing the professional judgment of the lawyer, and rendering the client unable to make rational decisions related to his or her case, the relationship may be detrimental to the client's interests.”
In addition to divorce and family law, Scudieri practices real estate law, landlord and tenant law, litigation and handles bankruptcy matters, according to his firm's website. The panel's decision notes that he was admitted to the state bar in 1989.
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