Ethics & Greed
Ethics, Greed & Personal Responsibility – What if a senior partner at the law firm where you work instructed you to break the law to obtain a higher settlement for a client?
by Rogelio Pineda
One late afternoon towards the end of June 2022, I was seated at my desk at Peña & Kahn PLLC, a personal injury law firm in the Bronx, when the lead attorney for the labor law department, Jonathan O. Michaels, approached my cubicle and asked if I was available to assist him interpreting for a client prep. I had started working at the firm three months earlier. If I worked ten hours of overtime per week, I could bank $72,000.00 a year. I wanted to save $200,000.00 in 5 years to create a retirement cushion, so, naturally, I obliged and followed Mr. Michaels to the conference room where the client was waiting along with his wife. Mr. Michaels introduced us and told me he was going to go get the junior attorney who was going to be handling the case with him.
Neither the client, Hernan Vinicio Sumba Contreras, an undocumented Ecuadorian in his early 30s, nor his wife wore pandemic masks. I was wearing one because we had had two positive Covid-19 cases in the office that same week. Jonathan O. Michaels came back, introduced the junior attorney to Mr. Sumba Contreras and his wife , and instructed him and me to go over the events that had led to our clients’ accident, how the accident happened, and his injuries.
In a nutshell, this undocumented Ecuadorian had fallen from an A-ladder while trying to drill a hole on a wall in a newly built house. He cracked the right side of his skull so badly that the doctors replaced all the bones on the top right side of his cranium with a titanium plate.
The lead attorney left, and the junior attorney (J.A.) began asking Mr. Sumba Contreras questions to confirm his personal information. As soon as I started translating the questions asked by the J.A. from English to Spanish and the responses of the client from Spanish to English, it became obvious that our client’s mental capacities had been dimmed by the accident. He was able to answer questions. He also remembered everything that mattered, but he wasn’t crisp. He hailed from a small town in Ecuador, had come to the US illegally, crossing the once impassable Darién Gap, and had finished the sixth grade in elementary school. He had no training or experience in construction and no technical skills in any field.
The J.A. then asked him about the nature of the job he had with the contractor, Bruckner Boulevard Owner LLC, who had been hired to give the newly built house where the accident occurred the finishing touches. It became rather obvious that Mr. Sumba Contreras was being honest.
After more than ten years working as a legal interpreter in New York City, and over 2,500 depositions under my belt, and five years in law school in Santo Domingo, and five years practicing employment law, I had developed a phenomenal ability to discern when a witness, a plaintiff or a defendant, was lying or concealing information. I’m not talking about detecting a lie when it is plainly obvious that someone is lying through his or her teeth. Any husband or wife who knows his or her partner well can do that. Nor am I referring to instances where the only way to find out if someone is lying or not would be through a polygraph test. I’m referring to instances in which someone who’s not fully acquainted with how events usually unfold tends to overlook the minutiae, the little details, and the required causality that are hallmarks of any interaction with legal repercussions.
Most of what happens in life, from the interaction between two cars that collide at an intersection to the interaction between a burglar and a homeowner who fires his gun, happens within a very predictable chronology with concomitant minutiae and side effects. Many people, particularly smart uneducated people and well-educated dumb people, assume that they can lie or twist the facts in a narrative and no one will be able to ascertain the incongruity or the missing link in the chain of events. That’s why most drug dealers end up in jail sooner rather than later, and that’s also why Sam Bankman-Fried and Elizabeth Holmes’ criminal status on their Wikipedia pages reads: INCARCERATED.
Our Ecuadorian client, however, was wise enough to understand that it was in his best interest to tell the truth, the whole truth, and nothing but the truth. Which he did.
Mr. Sumba Contreras told us that the contractor who had hired him knew he was undocumented and that he had no prior experience handling tools but had hired him anyway. He admitted that his employer hadn’t trained him at all. In fact, he had been working for the contractor for only a few weeks. This is a key issue in labor law litigation. It is also the main reason why the Occupational Safety and Health Administration (OSHA), a federal agency that sets and enforces workplace safety regulations, exists. “OSHA classes are required to ensure safe and healthful working conditions for employees. OSHA training helps employers and employees identify and mitigate potential workplace hazards.” But, in a world where cutting costs to increase earnings is religious dogma, oftentimes small- to medium-size business operations try to get away with using undocumented, unskilled labor for menial tasks until one day the shit hits the fan.
Mr. Sumba Contreras also revealed that on the same day of the accident, he had told his immediate supervisor, after arriving at the house, that the A-frame ladder he had been given to climb to drill high up on the wall had very shaky non-slip bases. He also assured us that he had mentioned this twice to his supervisor before he started drilling. These key revelations were going to play a pivotal role in any juror’s mind when it came to assigning responsibility for the accident.
Yes, Mr. Sumba Contreras was undocumented. Yes, he had no prior experience in the field. But the employer knew better and couldn’t claim ignorance regarding his legally dictated due diligence.
After about 45 minutes, the J.A. and I had managed to gather enough detailed information about why the accident had happened to be able to relate the key litigation points to the lead attorney, Jonathan O. Michaels. Of course, everything Mr. Sumba Contreras had told us was going to be preceded with the word “alleges” by the opposing counsel, which is their duty. Nevertheless, they were going to have to show that the undocumented Ecuadorian had been trained to perform his duties, and they were also going to have to allow our attorneys to depose the supervisor at the job site on the day of the accident.
Due to the nature, severity, and magnitude of the injury our client had suffered and how this injury was going to permanently and negatively affect his ability to earn a living and his day-to-day life for the rest of his life, it was easy to calculate a ballpark settlement amount. I figured he could get anywhere from a million and a half to two million dollars.
The J.A. unrolled the pages at the top of the yellow legal pad, went over a few missing details, and then excused himself and headed to Jonathan O. Michaels’ office all the way back at the corner end of the law firm. As usual, I began to chat with the clients to keep them entertained but also to make sure they understood that if they did get a large settlement amount, it was crucial for them to get solid financial advice from a professional and invest some of that money and avoid what unfortunately happens too often to many people with low levels of schooling, high levels of credulity, and poor foresight when they come across a lot of money overnight.
Jonathan O. Michaels and the J.A. came into the conference room. The J.A. sat down, and the lead attorney stood at the corner facing the client and his wife, to my right. I was seated directly across from the client at the table. Jonathan O. Michaels began by telling the undocumented Ecuadorian that he understood his testimony. But, he said, there’s a serious problem. His narrative was fine, and his recollection and his truthfulness were good. The problem was the insurance coverage his employer had. Jonathan O. Michaels explained that the contractor that had hired him off the books had an insurance policy with very low coverage for on-the-job accidents. At best, he continued, we would be able to get you two, maybe three hundred thousand dollars. And that was not fair. He, the undocumented Ecuadorian, had suffered a life-altering injury and would end up with a pittance after medical expenses and attorney fees were deducted.
I was floored. That was absolutely true. Just think about this; attorneys in New York State are allowed to charge between 25% and 40% percent on labor law cases. That means that with a 250K settlement, the undocumented Ecuadorian was going to walk away with much less than 150K after legal fees and medical bills.
Your case, Jonathan O. Michaels said to the undocumented Ecuadorian, is worth at least 2.5 million dollars. I saw how Mr. Sumba Contreras’s and his wife’s eyes popped open. So, the lead attorney continued, what we’re going to do is we are going to have to make a few minor changes to what you told my colleague here so we can get you all the money you deserve. Now I was the one whose ears pricked up with what the lead attorney had just said. How could a few minor changes to his story change the fact that his employer’s insurance coverage had a set limit for damages from an accident while on the job? I definitely wanted to hear this. I even had the urge, which I resisted, to pull down my mask so I could hear better, the same way we lower the volume of the music in a car while driving so we can see better.
Basically, the platinum-headed, undocumented Ecuadorian was going to have to change his story. The changes slowly began to add up to way more than “minor changes.” Jonathan O. Michaels asked him to
a) Scrap the part of his story about how he had gotten the job with the Bruckner Boulevard Owner LLC and completely omit the fact that he had ever been hired by that contractor.
b) He was going to testify that he had been hired and supervised by the owner of the house, i.e., by the American father of three who had busted his rear end for over two decades to provide his children and wife with a three million dollar house right outside New York City.
c) He was going to testify that it had been the owner of the house who had provided him with the shaky ladder.
d) He was going to testify that he had told the owner of the house that the ladder was shaky but had been told to do his job and stop complaining.
e) And, as a cherry on the cake, Jonathan Michaels asked the undocumented Ecuadorian immigrant to say that there had been debris and trash around the A-frame ladder.
Basically, Jonathan O. Michaels wanted Mr. Sumba Contreras to pin the accident on the American homeowner, or, to be precise, on the future American homeowner.
Now, you have to remember, the whole time Jonathan O. Michaels was instructing the undocumented Ecuadorian to lie under oath, I was the one translating all of his “minor changes” from English into Spanish. Any interpreter who has worked in a legal or a governmental setting can attest to the fact that over ninety percent of Spanish speakers automatically associate the interpreter’s voice and aura with the authority and weight and consequences behind the questions asked by the actual person in a position of authority. I experienced this all the time while I worked as an interpreter for the United States Citizenship and Immigration Services (USCIS). This was even more obvious when the USCIS officer asking an applicant questions about his criminal background was a female. Invariably the applicant would always respond, “Si Señor,” instead of “Si Señora,” i.e., they would say, “Yes, sir,” instead of “Yes, ma’am.” In other words, they would show respect to the authority of my voice, not to the female officers’ voice. Why? For various reasons. One of those reasons is that in the Spanish-speaking world a female voice is a voice of authority only when that female voice is the voice of your mother. Outside the home, authority is invariably associated mostly with a male voice. Another reason is that we humans are more likely to develop a strong bond with another human based on language, accent, and tone of voice rather than on phenotype, religion, or class. This is why a Londoner with an Anglo phenotype is more likely to bond with another Londoner with an African phenotype in Thailand than with a blond Russian or a middle-class Anglo-American.
Once I understood where Jonathan O. Michaels was going with his “minor changes,” I began to feel disgusted and ashamed. I deeply regretted having taken the job at this firm. This was not a law firm but a den of thieves, a conglomerate of ambulance chasers. That regret came over easily since I had already witnessed and experienced enough bullshit with the COO, Allan Torres, and other employees to make any sensible person want to get the fuck out of there and never look back. While hearing what this uneducated, platinum-headed, undocumented Ecuadorian was being asked to testify, I realized what a relief it was that I was wearing a face mask. At least this couple from Ecuador couldn’t see my face, the face of the Dominican legal assistant and Spanish interpreter from Peña & Kahn who had instructed him to lie under oath. Once he got caught lying, I could hear him telling the judge, “It was Rogelio Pineda, the Dominican interpreter; he was the one who told me to lie under oath.” Because, of course, a lawyer would never instruct his client to lie just to make more money. Lawyers simply never do that!
I knew then and there that that day was the first day of the countdown to my last day at that shit hole of a law firm.
I quit a few days later.
One thing that stuck in my head was that Jonathan O. Michaels kept asking the undocumented Ecuadorian, “Can you do that?” “Can you say that?” He said this every time the Ecuadorian’s face showed the slightest hint of incredulity. All in all, he must have said, “Can you do that?” “Can you say that?” between 15 and 20 times.
In New York State, a “conviction for first-degree perjury can result in a prison sentence ranging from 2 to 7 years…individuals convicted may face fines and a permanent criminal record, affecting their personal and professional lives.”
In case you are not aware, there’s something called suborning perjury. Suborning perjury is “the act of persuading or enabling another person to commit perjury, which involves making a false statement under oath in a legal proceeding. It is a distinct crime from perjury itself.” And yes, it also can land you in jail for 2 to 4 years and affect your professional and employment future.
Some people might say, Well, you were just doing your job, following orders! My response to that is this: a) That’s what many Nazi officers and soldiers said during the Nuremberg trials, and they were found guilty. b) The American Bar Association’s Model Rules of Professional Conduct says, RULE 5.1 Responsibilities of a Partner or Supervisory Lawyer (a) A partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct. RULE 5.2 Responsibilities of a Subordinate Lawyer (a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person. RULE 5.3 Responsibilities Regarding Nonlawyer Assistants. With respect to a nonlawyer employed or retained by or associated with a lawyer:(c) A lawyer shall be responsible for the conduct of such a person that could be a violation of the rules of professional conduct if engaged in by a lawyer if: (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner in the law firm in which the person is employed. The measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline.
If you read those rules carefully, you might think that because I was hired by Peña & Kahn as a legal assistant and legal interpreter, I could be excused from suborning perjury. But you would be wrong. I do hold a degree in law. And the firm knew that I had a degree in law from the Universidad Autonoma de Santo Domingo in the Dominican Republic when they hired me. In fact, when I was interviewed, I specifically told them that I was no longer interested in practicing law in the Dominican Republic due to the high levels of corruption in both the government and the legal system there. I also made it clear that I would be unwilling to do anything unethical, no matter what. In Santo Domingo, as everywhere else, lawyers have codes of ethical conduct to abide by. We are always told by our professors that a lawyer should know better!
In any case, you don’t need a law degree to understand that Jonathan O. Michaels was asking our client to lie under oath to obtain a higher settlement for the client and the firm. Avarice. Greed. The desire for material wealth at the expense of our integrity and our souls. Fuck that! I didn’t spend five years in law school waking up at 5 in the morning every day, going to bed at 10 every night, missing out on most social events normal people attend to then betray the oath I took and sell my soul to the devil. I didn’t swim across an ocean of misery and pain to drown on the shore for a New York City ambulance chaser. My parents, like all humans, have their flaws, but there’s one thing they didn’t do: they didn’t raise me to be a crook.
In the end, the platinum-headed, undocumented Ecuadorian said yes to all the “Can you do that?” “Can you say that?” As the J.A. was gathering all the documents strewn on the table, he stopped as if hit by an epiphany and said, “Michael, how’s the homeowner going to pay the 2.5 million if the house isn’t even insured yet?”
Without hesitating, Jonathan O. Michaels responded, “He’s going to have to sell the house! That’ll teach him not to hire unskilled workers!”
My perception of Mr. Michaels changed from scoundrel to psychopath.
I went back to my cubicle. It was past eight pm. I had added over three hours of overtime to my weekly paycheck. I had also gained a new perspective on life. I wouldn’t say that going to law school was a mistake. Nor do I feel that the negative experiences I had practicing law or working at Peña & Khan were a waste of my talent and time. In fact, as I was gathering my belongings to go home, a profound feeling of relief and joy came over me. I even felt like a man with a mission.
When I exited my cubicle and started walking down the hallway to use the back exit used by all employees, I saw Jonathan O. Michaels and the J.A. standing next to each other at the corner near the exit. They looked like two mafia dons ready to whack a civilian. As I got closer to them, Jonathan Michaels said to me, “So, what do you think about Mr. Sumba Contreras’ case?” The way he asked, I knew what he meant. He meant, Are you cool with what I did? Are you here at Peña and Khan for the long haul? Are you a rat? Do you appreciate the salary we are paying you? Are you cool with us destroying the lives of hard working Americans to make more money? Are you a corrupt Dominican willing to roll with the big boys for the big bucks?
I looked him in the eyes and said, “Now I know why they call you the master!” I continued walking and said, “Good night, see you tomorrow.”
After I quit, I began to do some soul-searching and finally decided to write to the Attorney Grievance Committee of the State of New York at the Supreme Court Appellate Division to report attorney Jonathan O. Michaels’ unethical conduct. I knew I wasn’t going to be able to live with myself knowing that all I had to do to prevent that sociopath from destroying the life of a hard-working family man was to speak up. The chief attorney for the committee, Jorge Dopico, responded to my complaint with a letter via email stating, “Dear Mr. Pineda: We have completed our review of your complaint against the above-named attorney. As explained below, we have concluded that no investigation or action is warranted.” I wasn’t surprised by this response from Mr. Dopico or by the “explanations” they offered to decline an investigation. Mr. Dopico argued that no investigation was warranted because
a) There is an insufficient basis on which to pursue further investigation.
b) We have determined that…[there is no]…contextual information or sufficiently convincing corroborating evidence…that the Firm or its attorneys committed any acts of professional misconduct.
Last time I checked, all instances of the legal system that judge the actions of non-lawyers allow for anyone with a complaint to provide them with “corroborating evidence.” But, since this complaint was against a lawyer, it could be dismissed prima facie without even requesting any “corroborating evidence.” The main reason why I wasn’t surprised by Mr. Dopico’s response is this: Lawyers, like priests, belong to a dogmatic, cult-like system that does its best to cover up the misconduct and serious abuses perpetrated by many of its members. In other words, if the public learned how rotten the US legal system really is and how corrupt many lawyers are, most people would think about it twice before hiring one. In fact it wouldn’t be surprising to learn of the creation of some type of insurance for people screwed by lawyers. Every year over one thousand lawyers are disbarred. And that’s only the ones that get caught with their pants down. A testament to these assertions can be easily corroborated with a Google search with the words “family law attorney killed by.”
Oxford University’s psychologist Kevin Dutton argues in his book Wisdom of Psychopaths for the existence of “functional psychopaths.” These are people who are not outwardly violent but utilize their “unempathetic, ruthless, and charismatic personalities to succeed in mainstream society.”
Dutton postulates that there are professional fields that attract functional psychopaths. His research showed that “the second most psychopathic profession is that of a lawyer.”
It has been almost three years since I resigned from my job as a legal assistant and interpreter at Peña & Kahn. I don’t know what happened with the undocumented Ecuadorian’s case. Looking back though, I’m thankful I chose the path of living a life based on ethical principles, regardless of the financial consequences. I can get a job, any type of job, and earn enough to live a decent life. What we cannot do is try and live a decent life after we sell our soul for a few dollars. Many people go through life with the uncomfortable feeling you get when you have conflicting beliefs, values, or behaviors. It’s called cognitive dissonance. Dissonance means disagreement, discrepancy, incongruity, inconsistency. Those are the hallmarks of inauthenticity. And there are few things in life worse than knowing deep down that you are a fraud, a crook, a Jonathan O. Michaels type.
Photo of a couple in a lawyers’ office by kaboompics, photo of a person holding a law book by Mikhail Nilov and photo of lawyers in an office by August de Richelieu curtesy of pexel.com
