SICK AND TIRED OF HEARING ABOUT ATTORNEYS WHO FALSIFY DOCUMENTS

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Bronx accident attorney)

First, this moron attorney was suspended from the practice of law for failing to register with the State and pay, like, a $300 fee. No one is hurt and no client has suffered financial injury by Clarke's inaction in failing to fill out a form and mail it with a check to New York's Office of Court Administration. However, Clarke did plenty of damage since then, and hurt his employer plenty.

Yet, it is no accident that Clarke agreed to remain suspended while the disciplinary authorities investigated claims of misconduct against him. He hoped that New York's Appellate Division would suspend him retroactive to his 2006 suspension for failing to file - for he knew he was definitely getting suspended from the practice of law for the shenanigans he pulled. He wanted to start the clock running early on his eventual suspension. But the Court didn't bite. Its punishment of Clarke (discussed below) starts running from the day of its December 10, 2009 decision.

The Court finds that "Clarke engaged in a pervasive pattern of misconduct by deceiving his employer, Fidelity National Insurance Company ("Fidelity"), and four of Fidelity's clients, with respect to work that he completely failed to perform in five separate matters, and by neglecting a total of six matters involving five separate clients."

Clarke admits all of this and, essentially, throws himself "on the mercy of the Court" for his punishment.

So what did Clarke, who worked as New York Area Counsel for Fidelity, do to injure and hurt his employer and clients?

1. a. In 2001 Clarke was to underwrite and supervise a series of mortgage refinance transactions affecting two properties in Manhattan. After the entire transaction had closed, he failed to record the mortgage documents.

b. Clarke concealed his neglect by: (1) falsely assuring counsel to the lender that the documents were recorded, and; (2) forwarding fraudulent endorsements to the Fidelity loan policies delivered at the closing, which falsely stated that the mortgage instruments were recorded and reciting City Register Filing Number ("CRFN") information which actually referred to completely unrelated transactions.

2. a. The same client hired Fidelity in 2006 to insure a refinance transaction involving the mortgages on the same properties as the first matter, which involved new money being secured by a new mortgage on each property.

b. Continuing to conceal his prior neglect, issued a title commitment on behalf of Fidelity which recited the same fraudulent CRFN information as contained in the 2003 endorsements. Based upon the new title commitment issued by respondent, the lender closed the loan transaction and Fidelity insured the new mortgage loan, unaware that the original loan documents had never been recorded. Fidelity was thus unable to record the 2006 loan documents.

3. a. Clarke became responsible in 2003 for refinancing in connection with a bankruptcy reorganization. Although a closing took place on December 24, 2003 and he recorded some documents in early July 2004, he did not record other documents until January 2005, and still others as late as April 2006. He never recorded mortgage documents with respect to properties in Suffolk County.

b. Clarke concealed his neglect by preparing and then by sending to the lender's counsel an endorsement which contained false CRFN information for documents that, at the time of its issuance, had not been recorded and for documents that he never recorded. When, in April 2006, Fidelity was advised by a borrower's counsel that the Suffolk County mortgages had never been recorded, Clarke told a Fidelity executive that he would personally record the documents, but he never did so.

4. a. In 2005 Fidelity was hired to issue a title insurance policy insuring the vesting of title in a family partnership. Following the execution of two necessary deeds, upon receipt of same, Clarke failed to record the deeds.

b. Following an inquiry from the family's counsel, Clarke assured counsel that the deeds had been recorded. He also forwarded official recording cover pages which he had fabricated and on which he had superimposed the facsimile signature of the City Registrar and the facsimile seal of the City of New York, which falsely indicated that the deeds were recorded. They contained bogus CRFN information from duly recorded instruments affecting entirely different properties in Queens.

5. a. A client hired Fidelity in May 2006 to provide title insurance for a transaction. Fidelity directed Clarke to record certain documents showing that loans for the property were paid off. He failed to file any of those documents.

The client owed combined State and City transfer taxes for these transactions totaling $472,500 and at the closing, executed the appropriate transfer tax returns and advanced $472,500 to Fidelity to issue checks to the Department of Finance. However, Clarke failed to file either the State or City transfer tax returns within the appropriate statutory period, and, in fact, never filed those returns. In December, 2006, Fidelity discovered that the accounting file for the client still showed a positive balance of $472,500.

b. In response to e-mails from Fidelity's Dallas office inquiring about the recording status of the documents, Clarke sent an e-mail falsely stating that the documents were recorded. In a subsequent e-mail to the Dallas office, he attached six documents fabricated by him to indicate that all of the documents had been recorded. Each page included false CRFN information (obtained from other duly recorded instruments regarding unrelated property), superimposed with the facsimile seal of the City Register and the facsimile seal of the City of New York.

When confronted about the transfer taxes, Clarke falsely advised Fidelity's accounting personnel that the transaction had not closed on June 16, 2006. In support of this false assertion, he produced transfer tax returns which he altered to reflect a change of the date of transfer from June 16, 2006 to November 30, 2006, which would have made the transfer tax due still within the respective statutory periods. As a result of Clarke's failure to pay the transfer taxes in the statutory period ending in July 2006, approximately $159,000 in penalties and interest accrued on the unpaid taxes until his misconduct was discovered in December 2006. Fidelity thereafter immediately paid the penalties and interest.

6. In October 2001, Clarke was assigned by Fidelity to underwrite and supervise the closing on the sale of a Manhattan condominium unit for $7,100,000. The City's Register's office rejected Fidelity's closing documents because of errors and it was Clarke's responsibility to address the errors and to forward the corrected documents to the City Register. However, he never made the corrections, he failed to have the documents recorded, and, in fact, the original documents were still in a file in his office when Fidelity fired Clarke in December 2006. Further, at the time of the October 2001 closing, the client executed tax returns and advanced $131,941.44 to Fidelity to cover combined State and City transfer taxes due on the transaction. However, Clarke never filed the tax returns, which resulted in penalties and interest accruing in the amount of $97,566.86. Fidelity paid the $97,566.86 in 2006 when it discovered Clarke's misconduct.　

Clarke has his psychologist testify at his disciplinary hearing that he suffered from clinical depression since September, 2005, including alcohol and drug abuse. And while Clarke's doctor testified that his depression was a major contributing factor to his neglect of legal matters, she could not conclude that his depression and "self-destructive" behavior were causally linked to his repeated acts of intentional deceit. And Clarke acknowledged that prescribed medication was effectively alleviating his depression by 2006, yet he continued to engage in fraudulent misconduct during that period.

New York's Appellate Division holds:

Clarke gets suspended from the practice of law for five years.