Attorney sanctioned for mistreating elderly client given chance to present evidence to the contrary

A New York attorney was suspended for 2 years for conversion, misappropriation, and conduct adversely reflecting on his fitness as a lawyer after making an oral agreement with a sick, elderly client in which she agreed to give him a significant amount of money. 

Mr. Zalk represented both the client, Ruth, and her husband and, after the husband’s death, and assisted Ruth in the sale of property.  Mr. Zalk did not charge Ruth for some of the legal work as she was ill and did not have much income.  Rather, they orally agreed that he would keep whatever was left of the down payment from the buyer of the property after necessary expenses were paid.   After closing, Mr. Zalk took various amounts out of the escrow account on several different occasions for his personal use, totally $126,000.  Ruth’s daughter filed the disciplinary complaint.

The Appellate Division found that Mr. Zalk violated the three professional conduct rules, stating that the Dead Man’s Statute kept him from using his testimony about his conversations with Ruth to disprove the charges.

In In re Zalk, 892 N.E.2d 369, 10 N.Y.3d 669 (2008), the Court of Appeals reversed holding that the Dead Man’s Statute did not prevent Mr. Zalk from introducing his testimony and thus remanded the matter for further proceedings.