When Lackawanna attorney Frank L. Bybel appeared in Lackawanna City Court two years ago representing a client facing a drunken-driving charge, he concealed the client’s earlier conviction of driving while intoxicated, according to an appellate court that has suspended the lawyer for nine months.
The client had been convicted of misdemeanor DWI a few months earlier in the Town of Darien in Genesee County.
But Bybel, 51, told the Lackawanna judge that the Lackawanna case would be the client’s first DWI conviction.
As a result, the Lackawanna judge accepted his client’s guilty plea to a reduced charge of driving while ability impaired and gave him a conditional discharge.
Three weeks later, when his client returned to Darien Town Court for sentencing on the misdemeanor DWI, the judge asked Bybel if his client had been convicted of DWI elsewhere before sentencing.
“Not that I know of, Judge,” Bybel replied.
When the judge mentioned the driving-while-ability-impaired plea in Lackawanna, Bybel acknowledged that his client had been arrested there but said that he was “not too familiar” with the matter.
When the judge asked the client about it, the client said he had been previously convicted of an alcohol-related driving offense.
The Town Court sentenced him to three years’ probation and imposed a $1,450 fine.
A state appellate court order spells out what Bybel said in the two courtrooms.
As a result of what it called Bybel’s “calculated misrepresentations” in the Lackawanna and Darien courtrooms, the appellate court suspended him.
The appellate judges issued the suspension earlier this month in response to a petition that was filed last August by the Grievance Committee of the 8th Judicial District, which covers Western New York.
Bybel denied the allegations of the petition, and the appellate court appointed a referee to conduct a hearing.
Bybel’s client was convicted Nov. 30, 2011, of misdemeanor DWI after a trial in Darien Town Court.
Before he was sentenced, he was arrested March 3, 2012, on a DWI charge in Lackawanna and pleaded guilty March 28, 2012, in Lackawanna City Court to the reduced charge.
Before accepting the plea, the Lackawanna City Court judge asked Bybel if this was his client’s second DWI.
According to the court transcript, the following exchange took place between Bybel and the judge:
“Now, this is the second one, isn’t it?” the judge asked.
“No, Judge,” Bybel replied.
“First one?” the judge asked.
“Yes,” Bybel said.
After the court accepted the plea and dismissed the DWI charge, Bybel asked the court to sentence his client to a conditional discharge because he said the DWAI conviction was the client’s “first offense.”
The court sentenced the client to a conditional discharge, fined him $300 and suspended his driving privileges.
The referee found that when Bybel referred to the Lackawanna DWAI conviction as his client’s “first one,” Bybel was under the mistaken impression that the client’s prior DWI conviction in Darien Town Court “had not ripened to a final disposition” because the client had not yet been sentenced in Darien.
The appellate judges, however, found that Bybel’s statements in Lackawanna City Court were false because of the client’s 2011 DWI conviction in Darien.
While noting the referee’s finding, the appellate judges concluded that Bybel “knowingly made false statements of fact to Lackawanna City Court in an effort to conceal the criminal history of the client.”
In the Darien case, the Town Court held a sentencing hearing April 19, 2012. Before the hearing, the prosecutor asked Bybel about the Lackawanna case. Bybel said the DWI charge there had been dismissed.
At sentencing, Bybel told the court that the DWI conviction in Darien was his client’s only arrest and that he had “never been in trouble before.”
Despite Bybel’s contention that he did not know of any other DWI convictions for his client before April 19, 2012, he acknowledged his client’s March 3, 2012, arrest in Lackawanna after the judge mentioned the DWAI plea.
But the attorney said he was “not too familiar” with the matter.
As for Bybel’s statements in Darien, the appellate judges concluded that he “intentionally sought to mislead Town Court and the prosecutor regarding the client’s criminal history” before and during the sentencing hearing.
The referee found that Bybel was technically correct when he told the prosecutor immediately before the hearing that the Lackawanna DWI charge had been dismissed.
But the appellate judges concluded that those statements “were purposefully incomplete and misleading,” since Bybel did not tell him that the client had pleaded guilty to DWAI.
They ruled that Bybel violated four rules of professional conduct by knowingly making a false statement of fact or law to a court and engaging in conduct involving dishonesty, fraud, deceit or misrepresentation as well as conduct prejudicial to the administration of justice and adversely reflecting on his fitness as a lawyer.
In suspending him for nine months, they noted that Bybel previously received four letters of caution and “that the misconduct at issue involved a series of calculated misrepresentations.”