Court Slaps Wrist of Criminal Defense Lawyer for Peaking at the Prosecutor’s Notes Without Permission

Posted on October 31, 2012

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A New York state appeals court last Thursday has censured veteran Albany criminal defense attorney Terence Kindlon for viewing, handling and photographing a document that was left on an Albany County prosecutor’s table during a recess in a criminal trial without asking for nor being granted permission to do so.

Calling the 65-year-old defense lawyer’s action “undignified” and “discourteous conduct”, the Appellate Division of the state Supreme Court cited Kindlon for professional misconduct. The panel of judges which included Presiding Justice Karen Peters and justices Robert Rose, John Lahtinen, Edward Spain and Michael Kavanagh in the ruling noted that Kindlon has already received three letters of caution from the committee since 1997, but it nonetheless credited him for an “otherwise distinguished legal career and laudable community service.”

Kindlon  was censured for for his action during the felony assault trial of his client Kevin Powell, a former Army captain from Delmar. Powell was under trial before acting Supreme Court Justice Dan Lamont on charges that he threw a beer mug that injured a woman in June 2010 outside a bar on Broadway. During a break in that trial, Kindlon had noticed a document on the desk of Assistant District Attorney Brian Conley, the prosecutor handling the case, with the Tully Rinckey logo on it. It was a copy of the email exchange between Conley and Bruce Lennard, the lawyer formerly in charge of the case who left the District Attorney’s Office to work for the  Tully Rinckey law firm. In the email exchange, Conley asked Lennard, “What was the name of the training that you were talking about in the Kevin Powell case?” Lennard replied that Powell was a “trained warrior who knows what he is capable of and what the effects of his action will be, particularly with a missile like that mug. He cannot have hurled that mug with such force without intending that it cause as much damage as possible.” Kindlon, who carries a small digital camera, took a photo of the email exchange.

Three days after his client Powell was convicted of second-degree assault, Kindlon sent the picture of the email exchange between Conley and Lennard  to Mathew Tully, the founding partner at Tully Rinckey, who apparently upset that one of his defense attorneys assisted a prosecution, said that Lennard’s career at Tully Rinckey would be over the next day. Learning this, Kindlon called it “poetic justice” and told the Times Union newspaper that while he does not like to see people suffer, “I am delighted. I’m dancing on my desk … I have to make an exception. He got what he deserved.”

For what he did,  the Court in the censure ruled that Kindlon “engaged in undignified and/or discourteous conduct, as well as conduct that adversely reflects on his fitness as a lawyer.”

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