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A federal judge in Brooklyn was correct to reduce the fees of an attorney who offered “dismal” representation and to refer the lawyer to two disciplinary committees, a unanimous panel of the 2nd U.S. Circuit Court of Appeals ruled last week. The attorney, David Goldstein, failed to complete a $350,000 settlement for a client who brought a wrongful death suit on behalf of her husband against several hospitals and physicians, the court found in In Re David Goldstein, 04-2462-cv. At one point, the client wrote a letter to Eastern District of New York Judge John Gleeson asking him to help her obtain the money. Largely affirming an order from Magistrate Judge Roanne L. Mann, Gleeson reduced Goldstein’s fees from $95,000 to $20,000 and his expenses from nearly $21,000 to $2,500. The judge then referred Goldstein to the grievance committees for the Appellate Division, 1st Department, and the Eastern District. Goldstein has not faced public discipline. His attorney, Charles E. Knapp, said that characterizing his client’s performance as “dismal” was unfair considering the difficulty of the case and the amount of money Goldstein won. “He got a very good result in a very difficult case that no one else wanted,” Knapp said. The plaintiff, Helen Rosario, alleged that doctors denied her husband, Nelson, medical treatment because he was infected with HIV. Mr. Rosario had a bad heart, Knapp said. If his wife had sued in state court instead, he said, her chances of success would have diminished. Part of Goldstein’s approach was to include claims under the Americans with Disabilities Act. Knapp noted that Goldstein had no reason to delay the case and only did so when Ms. Rosario said she had second thoughts about the proposed settlement and wanted to seek another opinion. “He is the one who loses by delay, because his client doesn’t get her money and he doesn’t get his money,” Knapp said. He also suggested that Goldstein had a strained relationship with Magistrate Judge Mann, who had recommended sanctions against Goldstein in another case. At the time of the Rosario lawsuit, Goldstein had other cases before the magistrate judge. Goldstein, who recently underwent surgery after being involved in a car accident with a drunken driver, said he was depressed about the ruling but prepared to move forward. “The major thing was that after the decision, the client was having second thoughts,” he said. “I think I should have let the judge know right away that there was a problem with my client.” The litigation over Mr. Rosario’s death was “acrimonious,” according to the 2nd Circuit, and led to numerous disputes between the parties. Once the settlement was reached, Mann became concerned that settlement documents were not filed. She ordered Goldstein to comply or face dismissal of the suit. Goldstein sent a letter to Gleeson, who later concluded that it was backdated. Goldstein denied that he backdated the letter. Later, Gleeson was under the impression the settlement, which he had approved, had been dispersed when it had not. Finally, a year and a half after the settlement had been reached, Gleeson received a letter from Ms. Rosario, who asked for help. DISBURSEMENT DISPUTE Goldstein also ran afoul of Magistrate Judge Mann in arguing to maintain his fees and expenses, as he failed to provide evidence of his disbursements. The magistrate judge recommended the reduction, and Gleeson approved it, though he excised references to other allegations of misconduct by Goldstein before Mann. He then referred Goldstein to the disciplinary committees. In affirming that action, the 2nd Circuit, in an unsigned opinion, first determined it had jurisdiction to review the disciplinary referral, which it said was akin to a sanction against Goldstein. “It is undisputed on the present record that his representation was of such dismal quality that his client had to personally seek the court’s aid just to get the settlement finalized,” the court wrote. “A colorable breach of Goldstein’s representational duties appeared on the face of the record, and the referral was therefore not an abuse of discretion.” Knapp took some consolation in the fact that the court put no restrictions on defenses Goldstein could raise before the disciplinary committee. Goldstein also tried to look at the bright side. “If a building falls on you, I guess you can take solace that you can move your toes afterward,” he said. “I suppose there is a positive there.”

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