An attorney who entered into a side deal to testify for a police officer who was suing the attorney’s own firm for malpractice was suspended for a year by a unanimous Appellate Division, First Department panel.
Gary Novins, who is based in Melville, had asked for a lesser penalty, but the panel in Matter of Novins, M-5083, on Tuesday found that he failed to fully accept responsibility for his actions. Justices Angela Mazzarelli (See Profile), Richard Andrias (See Profile), Leland DeGrasse (See Profile), Helen Freedman (See Profile) and Judith Gische (See Profile) sat on the panel.
In 2006, Novins was hired by Ginarte O’Dwyer Gonzalez Gallardo & Winograd and assigned to a personal injury case filed by a police officer against New York City. The case had been pending since 1994, according to the decision.
The officer, James Bernardini, was shot and wounded in a bar while off-duty by Angel Villarini, another off-duty officer. Bernardini alleged that the city negligently supervised Villarini, who was also named as a defendant but never served.
In 2007, Bronx Supreme Court Justice Janice Bowman awarded summary judgment to the city, ruling that it had no notice of Villarini’s dangerous tendencies. The First Department affirmed.
According to Tuesday’s decision, the Ginarte firm cut Novins’ annual bonus by 75 percent after Bernardini’s case was dismissed.
While an application for leave to appeal was pending, Novins, without the knowledge of his firm, met with Bernardini, according to the decision. Bernardini said he planned to file a malpractice suit against the Ginarte firm for failing to serve or depose Villarini, neglecting the case for years and spoliating evidence, among other allegations. Novins agreed that he would leave the firm and testify for Bernardini in exchange for 45 percent of any recovery from the malpractice case and the underlying personal injury case.
Novins has testified that Bernardini had the idea of offering Novins this generous compensation. Bernardini, however, testified that he never intended to pay Novins any more than he had agreed to under his retainer agreement with the Ginarte firm. He said that he never discussed additional compensation with Novins until the meeting, where Novins produced the 45 percent compensation agreement and asked him to sign it, promising that he had notes and documents that would prove the malpractice case.
Bernardini sued the Ginarte firm and its principals in May 2008. Over the next year, Novins repeatedly called Bernardini and left him voicemails trying to get him to honor their agreement. In one of the last of those messages, in May 2009, Novins falsely said that he had already left the firm and threatened to destroy all the evidence in his possession unless Bernardini called him back.
In early 2010, while discovery was underway in the malpractice case, the Ginarte firm learned about Novins’ agreement with Bernardini but did not immediately fire him.
In August 2010, Novins was deposed but renounced his earlier accusations of malpractice against his firm. Less than two weeks later, Bernardini filed a disciplinary complaint against Novins. Within days, the Ginarte firm fired Novins and filed a disciplinary complaint against him as well.
In 2012, the Departmental Disciplinary Committee brought six charges against Novins. It alleged he tried to charge Bernardini an excessive contingent fee; agreed to the payment of a witness (himself) in exchange for testimony; engaged in fraudulent conduct; and that the voicemails he left for Bernardini were threatening and harassing.
A referee found that the agreement was “at best precatory and at worst misrepresentative, dishonest and unworthy of any lawyer,” but said that in light of Novins’ unblemished 20-year record and apparent remorse, a three- to six-month suspension was a sufficient penalty.
A hearing panel sustained all but one of the charges and recommended a more severe penalty of a year’s suspension.
The First Department agreed with the hearing panel.
Novins, the court wrote, “violated his duty of loyalty to both Bernardini and the Ginarte firm by attempting to charge a client for information that both he and the firm were ethically obligated to provide, and by concealing the agreement from his employer.”
The panel also noted that Novins “threatened to destroy evidence that was allegedly crucial to Bernardini’s malpractice claim.”
“The fact that respondent did not act on his threat does not warrant a different result,” it said.
“The violations are serious and were motivated by financial gain,” the panel wrote. “Notably, as the majority of the [hearing] panel found, there is significant doubt as to whether respondent fully comprehends and accepts responsibility for his misconduct. Among other things, respondent fails to recognize that his advising Bernardini to bring a malpractice case against the Ginarte firm, pursuant to an unethical, dishonest and misrepresentative personal services agreement, reflected adversely on his fitness as a lawyer and involved dishonesty, fraud, deceit or misrepresentation.”
“Indeed, the record would support the conclusion respondent conceived the agreement with Bernardini as a means to retaliate against the Ginarte Firm because it cut his annual bonus by 75 percent after the personal injury action had been dismissed,” the panel wrote.
The suspension will become effective 30 days after the order.
Novins is represented by Barry Temkin, a partner at Mound Cotton Wollan & Greengrass, who declined to comment.
The disciplinary committee is represented by Jeremy Garber.