Attorney Censured For Neglect; Client Sought Divorce in 1994
Public censure was imposed on an attorney who had neglected a divorce client’s matter for many years and despite repeated assurances that he would secure the relief sought.
The charges against respondent relate to his representation of a woman (AW) who retained his firm to file for a divorce in 1994. AW paid the firm a retainer fee of $3,750. Respondent initially performed substantial work on the matter, including the preparation of a summons and complaint, an omnibus motion for pendente lite relief, preparation of a net worth statement, and several drafts of a separation agreement. During the course of the representation, however, AW’s husband discharged his counsel and repudiated a proposed stipulation of settlement to which his counsel had agreed. At that point, the matter ceased to move forward.
In 2001, AW filed her first complaint against respondent, alleging that he had neglected her matrimonial matter. In response to that complaint, respondent admitted to the Committee that he was to blame for AW’s failure to obtain a divorce judgment up to that point, and the Committee issued a letter of admonition, dated September 10, 2002, finding that respondent had neglected a client matter. The letter directed respondent “to complete [AW’s] divorce at the earliest opportunity at no additional charge.” In 2003, the matter was still unresolved, and AW filed another complaint against respondent, to which he responded with the representation that he was working on completing it. Based on that representation, the Committee closed the investigation. The matter continued to languish, however, leading AW to file a third complaint in 2006, the investigation of which was again closed based on respondent’s assurances that he would complete the divorce. Finally, in 2010, with the divorce still not final, AW filed the complaint from which the present motion stems.
As previously noted, respondent concedes that, as found by the Hearing Panel, he is guilty of neglect, failing to refund an unearned fee, conduct prejudicial to the administration of justice, and conduct reflecting adversely on his fitness as a lawyer. This leaves for decision only the question of the appropriate sanction. The Hearing Panel amended the Referee’s recommendation of a 30-day suspension to one of 60 days. Respondent asks us to impose a public censure. As previously noted, the Committee asks only that this Court impose a sanction that we deem just and proper.
The New York Appellate Division for the First Judicial Department chose censure over suspension
We find that, on balance, the facts of this case favor public censure over a brief suspension. As this Court has observed, “public censure is a suitable sanction for neglect of client matters if an attorney has no history of misconduct warranting disciplinary action” (Matter of Johannes, 66 AD3d 39, 41 [1st Dept 2009]). Apart from this matter, respondent has an unblemished disciplinary record over a career of approximately 30 years. Further, a number of mitigating factors weigh in respondent’s favor. As noted, his neglect was confined to a single matter and was not accompanied by any other egregious misconduct. During the period at issue, he experienced serious family and professional difficulties, including medical crises and deaths of people close to him. Respondent has fully cooperated with the Committee. He has admitted his misconduct and ultimately refunded his fee to AW. He has also taken steps to ensure that he will not neglect matters in the future, such as installing a better computer case-tracking system and increasing the frequency of his firm’s comprehensive case progress meetings. Finally, we are persuaded of the sincerity of respondent’s expression of remorse.
(Mike Frisch)