A Long Island man convicted of defrauding homeowners through a loan modification scheme has a plausible legal ethics complaint claim against his trial attorney for failing to file a notice of appeal, a federal judge ruled Friday.
The refusal by Joseph Conway of Mineola-based firm LaRusso, Conway & Bartling to file an appeal for client David Gotterup, who was sentenced to more than 11 years in prison for conspiracy to commit mail, wire and bank fraud, was “inexcusable as a matter of ethics and professionalism,” said Eastern District Judge Nicholas Garaufis.
The sharply-worded, nine-page ruling gives Gotterup more time to file a notice of appeal.
Garaufis said Conway “abandoned” Gotterup, leaving the task of filing a notice of appeal to his incarcerated client and the client’s brother—who is not an attorney—when Gotterup had reason to believe his attorney would do it for him.
Noting that Conway worked for the Eastern District U.S. Attorney’s Office for 15 years, once served as the head of the office’s Long Island criminal division, and has served on the district’s Criminal Justice Act panel since 2005, Garaufis said completing the filing would have been a “perfunctory” task.
“As such, he is quite obviously aware of trial counsel’s obligation to protect the appellate rights of a criminal defendant by timely filing a notice of appeal,” the judge wrote, ending his ruling with a declaration that he is referring the matter to a grievance committee as well as Appellate Division, Second Department Presiding Justice Randall Eng.
In an email after reading the decision Friday, Conway said he has “not had any complaints of any type whatsoever about my practice and work efforts or ethics.” Conway said he was admitted to practice in 1988.
“I wholeheartedly disagree with the decision and look forward to an opportunity to present my case,” he said.
Matin Emouna of Emouna & Mikhail also represented Gotterup, but Garaufis’ ruling does not address his performance in the case. Emouna declined to comment on the ruling, saying he had not read it yet.
Gotterup appeared pro se in recent proceedings.
Assistant U.S. Attorneys Sylvia Shweder and Bonni Perlin appeared for the government.
According to a news release from the Eastern District U.S. Attorney’s Office, from 2008 to 2012, Gotterup allegedly ran a scheme in which he and accomplices convinced more than 1,000 homeowners who were underwater on their mortgages and seeking relief through a government modification programs to pay thousands of dollars in advance fees to companies under Gotterup’s control.
In addition to his prison sentence, Gotterup was ordered to pay more than $2.5 million in forfeiture.
He was initially given a 15-year sentence but Garaufis agreed to resentence him because he did not give notice that the term may exceed the federal sentencing guideline of 135 months to 168 months.
According to Garaufis’ ruling, Gotterup asked Conway to file a notice of appeal at his April resentencing.
In Conway’s version of events, according to the decision , he told Gotterup that he should file a notice of appeal pro se and seek new counsel, while Gotterup said he was under the impression Conway was still representing him.
Conway “never said anything about a pro se representation,” Gotterup told the judge at an Aug. 8 hearing, according to a transcript of the proceedings.