Paying The Ticket

The New York Appellate Division for the First Judicial Department imposed a three-month suspension on these facts

In or about November 2011, a client retained respondent for a traffic incident in which the client alleged was wrongfully ticketed, detained, and charged with disorderly conduct by New York City police officers. The client executed a retainer agreement with respondent, in which respondent agreed to pursue personal injury/civil rights/torts claims against the New York City Police Department and the City of New York. Respondent also agreed to represent the client pro bono on the disorderly charge, which was ultimately dismissed. Respondent executed a notice of claim filed with the New York City Comptroller’s Office, which was untimely because it was not filed within 90 days of the traffic incident.

In July 2012, respondent commenced an action in Supreme Court, New York County, and the New York City Corporation Counsel’s Office answered and demanded a bill of particulars and discovery. Subsequently, respondent and the client met with representatives from Corporation Counsel’s and Comptroller’s Offices, and was offered a settlement of $4,500, contingent upon a timely notice of claim, which the client accepted. Following the meeting, respondent realized that the notice of claim was untimely, but believed in his view there was a viable claim for malicious prosecution. However, due to respondent’s deteriorating relationship with the client over the course of this matter, instead of re-filing in federal court or seeking leave to file a late notice of claim, respondent elected to pay the client out of his own funds.

When respondent presented the client with a check for the settlement after deducting expenses and his attorney fees, he presented the client with an OCA mandated closing statement falsely stating he filed a stipulation of discontinuance with the court. In connection with the client’s complaint against respondent, he filed the false closing statement with OCA, and produced these filings to the Committee. Respondent also stated, in response to the Committee’s request, that he would produce copies of the purported settlement check issued by the City and bank statements evincing the deposit of said check.

At his deposition, respondent admitted there had been no actual settlement, and that he had paid the client with his personal funds. Accordingly, the Referee correctly found that respondent’s actions violated rules 1.3(a), 1.3(b), 8.4(c), 8.4(d), and 8.4(h).

In mitigation, respondent has no prior disciplinary history in 21 years of practice, and his neglect and subsequent misrepresentations were limited to one client matter. Respondent made his client financially whole, he did not profit financially, and fully admitted his misconduct when he testified before the Committee. Further, respondent has a history of pro bono service for this client and stated he did provide services for other indigent clients.

(Mike Frisch)