Think Again - April 23, 2008

Right when I thought things were decent with the Landlord, I was wrong. I really dislike being threatened, especially by people who have no basis for doing so. When lawyers get over-zealous, they sometimes forget basic laws or underestimate the people they are dealing with. I have do believe this guy thought he was going to scare us into action.

Think again, Mr Bad Attorney. Think Again.

Below is the letter we received in the mail, followed by the letter we will be sending back. (Like I have any extra time laying around to do this stuff.)

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April 22, 2008

Dear Tenants:

We represent Landlord, the owner of the above property of which you are a tenant.

We are advised by Mr. Landlord that you did not pay him his rent for the month of April, 2008 in the sum of $$$$.

Please be advised that pursuant to paragraph 19 of the lease, you have five days to correct the default and pay Mr. Landlord the rent due. If you continue in default, the lease will be canceled and Mr. Landlord will seek to evict you.

We also understand that you are attempting to impede Mr. Landlord from having an open house to sell this property. That behavior would violate Mr. Landlord’s rights under paragraph 15 of the agreement, and you may not prevent Mr. Landlord from holding an open house to sell his property.

Finally, we understand that you are in law school. If you continue to violate the terms of this lease, we will deem that to be a matter of interest in the event you do seek to become a member of the Bar of this State.

Very truly yours,

Mr. Bad Attorney

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April 23, 2008

Dear Mr. Bad Attorney:

As first year law students, our law school trains and educates us in the practice of thorough legal research. We can reasonably assume that, as a practitioner of the law and a member of the State Bar Association of New York, you are just as capable of performing inquiries into applicable laws and facts.

We find it devious that an attorney would make egregious misrepresentations of the terms of our residential lease in an attempt to coerce actions and silence behavior that we, as tenants, are well within our rights to assert.

Had you properly researched our dealings with Mr. Collace, you would have discovered that, per section 15 of our lease agreement, your client may show the house to potential buyers. Under a strict interpretation of the law, the use of the word “may” is defined to mean “possibility” or “is permitted to.” Having covered the interpretation of contracts during our first week of law school, we believe, and case law supports, a reading of the clause as meaning that entrance to the property is a possibility, and could permissively occur. We have cooperated in the showing of the house previously, and will continue to do so as long as appointments are made in advance. Having allowed the property to be entered multiple times, we have fulfilled our duty as a tenant under the lease agreement. Paragraph 15 does not provide any limits, and as such, should be read under the strictest interpretation possible.

Furthermore, had you read the contract, you would have noticed the phrase “at reasonable times” appears. Your emphatic recognition of our status as law students and your client’s repeated acknowledgement that one of the many reasons for our denial of an open house was its proximity to final examinations; we found your client’s repeated and unyielding requests unreasonable. We have provided your client with a set of dates which would be agreeable to discuss a potential open house. Not only will witnesses verify the vast number of calls to our telephones from your client after the issue had been discussed at length and repeatedly denied, but can attest to the amount of stress and emotional distress he has caused us. It is also important to note that the lease agreement contains a great many clauses that are clearly unconscionable. Though an amended agreement should be drafted forthwith, we feel it sufficient to duly note such occurrences in the present.

Had you completed a thorough interview of your client and a complete investigation into the facts involved prior to hastily preparing the unfounded letter, you would have discovered that your client has, in multiple circumstances and for extended periods of time, violated our warranty of habitability and has willfully violated the terms of the lease and our quiet enjoyment of the property. New York Real Property Law, Article 7 describes the landlord-tenant relationship. New York Law requires the lessor to provide tenants with such basic needs as hot water, heat and other related services, or be found guilty of a violation of the law. The warranty of habitability also requires the lessor to ensure the property is “fit for human habitation and for the uses reasonably intended by the parties and that the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety.” On multiple occasions, and as several witnesses will attest, the house was without basic needs, including heat, hot water, and proper plumbing. Many of these problems have gone undiagnosed, unrepaired and without change for more than half of the current lease period.

Moreover, you allege, without factual basis, that we had failed to pay any due rent. The law entitles the withholding of rent when the terms of the lease agreement remain unfulfilled by the lessor. Here, not only are there drainage problems still uncorrected, but the showers continue to be without hot water for any reasonable period of time. Having properly informed your client of these and many other problems that made the residence below the standards of habitability, more than five months ago, we were and continue to be well within our rights as tenants to withhold rent.

However, even under these circumstances, in an effort to remain conciliatory with your client, we tendered payment of rent prior to April 22, 2008 – the date of your letter – as is reflected on the checks delivered to and cashed by your client. However, the lease does not provide for any delivery of the rent, and is without an address for notice. As such, the law requires the landlord present himself at the most prominent point of the property, and there, demand rent. Here, the landlord had not done so, and is without standing to make any statements to the effect that rent was unpaid. Had your client arrived at our residence and demanded rent, the rent could have been tendered. No such attempt was made.

Even more appalling was the inclusion of the last paragraph of your letter. As a member of the New York State Bar Association we, as law students, look to you and other active practitioners for guidance and role-models. Having once been a student of the law, your understanding of the stresses of law school, and the immense pressure to pass the Bar Examination gives you an expert view on the result of threatening us with report to the Bar Association. Your quite obvious attempt to extort, coerce, harass and intentionally inflict emotional distress is quite disappointing, and illegal.

The New York Lawyer’s Code of Professional Responsibility, provides in section EC 1-7, that “a lawyer should avoid … condescension toward, and treat with dignity and respect, all parties…” We highly suggest that you familiarize yourself with the document, in its entirety, but would like to draw your attention to the following:

EC 1-7: A lawyer should avoid bias and condescension toward, and treat with dignity and respect, all parties, witnesses, lawyers, court employees, and other persons involved in the legal process.

EC 7-1: The duty of a lawyer, both to the client and to the legal system, is to represent the client zealously within the bounds of the law, which includes Disciplinary Rules and enforceable professional regulations.

EC 7-10: The duty of a lawyer to represent the client with zeal does not militate against the concurrent obligations to treat with consideration all persons involved in the legal process and to avoid the infliction of needless harm.

EC 7-19: Our legal system provides for the adjudication of disputes governed by the rules of substantive, evidentiary, and procedural law. An adversary presentation counters the natural human tendency to judge too swiftly in terms of the familiar that which is not yet fully known; the advocate, by zealous preparation and presentation of facts and law, enables the tribunal to come to the hearing with an open and neutral mind and to render impartial judgments. The duty of a lawyer to a client and the lawyer's duty to the legal system are the same: to represent the client zealously within the bounds of the law.

Furthermore, we wish to draw your attention to the section describing misconduct by an attorney. Under DR 1-102 [1200.3], it is intolerable for an attorney to engage in conduct that violates any disciplinary rule, to engage in illegal conduct that, among other things, adversely reflects on an attorney’s fitness as a lawyer, or to engage in conduct “involving dishonesty, fraud, deceit, or misrepresentation.” Your material misrepresentations and grossly inadequate research is plainly visible in the demand proffered and threats levied against us in your letter.

In addition, DR 7-102 [1200.33] forbids a lawyer from taking action on “behalf of [a] client when the lawyer knows or when it is obvious that such action would serve merely to harass or maliciously injure another.” Having attended and graduated from law school and subsequently taken the bar exam, you are well aware of the ferocity of your statements and the concern, worry and upset the blackmail would yield. We are unable to conclude that there was any reason to include the final paragraph in the letter but to coerce, extort, harass and inflict distress upon us.

We trust you and your client will familiarize yourselves with New York Penal Code, section 135.60, which defines coercion as any instance where a party “compels or induces a person to engage in conduct which the latter has a legal right to abstain from engaging in, or to abstain from engaging in conduct in which he has a legal right to engage, by means of instilling in him a fear that, if the demand is not complied with, the actor or another will … perform any other act which would not in itself materially benefit the actor but which is calculated to harm another person materially with respect to his…career, financial condition, reputation or personal relationships.” It would also serve you well to become acquainted with statutes regarding extortion/blackmail and harassment, as well as multiple areas of intentional tort law.

Your attempt to scare us into acting against our will is reprehensible and ethically unscrupulous. We read the paragraph to be a flagrant violation of DR 9-101 [1200.45], which resolves that “a lawyer shall not state or imply that the lawyer is able to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official.” You know, very well, that the New York State Bar Association is a legislative body aimed at regulating the legal profession. By threatening to report us to the Bar Association, you concretely imply that our future career can and will be affected should we assert our rights or disagree with your client’s lessor tactics and management, and that you and your client will initiate an investigation into our character.

As future candidates of the State Bar, we are ashamed of your actions, and would like the harassment to cease with due immediacy. We respectfully request that your client terminate the unfounded, unnecessary and deliberate attempts to interrupt our studies. I sincerely hope that you will advise your client that any entry onto our property without our permission constitutes criminal and civil trespass.

We intend to perform well on our law school examinations without dealing with this or any other issue concocted by you or your client.

This letter is not to be construed as a complete statement, nor is it fully inclusive of all grievances, assertions and statements of fact. We reserve our right to pursue all avenues of recourse available and the ability to exercise our liberties under the law.

Very sincerely,

We Two Tenants

cc: XXX, XX

American Bar Association

New York State Bar Association Committee on Professional Ethics

Grievance Committee for the Tenth Judicial District