The Case That Never Was
The New York Appellate Division for the First Judicial Department imposed a six-month suspension on these agreed facts
At all times relevant to this proceeding, respondent practiced law as an associate at the law firm of Sack & Sack LLP (Sack Firm). In 2015, a client, who was a securities broker, retained the Sack Firm to commence litigation against his former employer, for retaliatory discharge. The client gave respondent a timeline relating to his discharge and remained in contact with respondent, who was assigned to the matter. Throughout 2016, respondent repeatedly told the client that a statement of claim had been filed with the Financial Regulatory Authority (FINRA), though such claim was not filed until July 10, 2017. On December 21, 2017, respondent advised the client that waiting on FINRA was getting them nowhere, stating “[l]et’s discuss filing in court.” On January 22, 2018, in response to an inquiry from the client, respondent stated that he “filed [the lawsuit] in court last week and will send it to the process server for service.” This statement was false, as respondent had not filed the lawsuit nor contacted a process server. On February 20, 2018, respondent stated in an email to the client that the lawsuit “should have been served by now or will be imminently.” On March 13, 2018, respondent stated that service of the complaint had been accomplished and that he would be “filing a request for a preliminary conference with the judge next week.” These statements were false.
On September 14, 2018, in response to an email from the client requesting an update on the lawsuit, respondent wrote, “They’re still delinquent with discovery,” and “[O]ur court date was rescheduled because it was improperly put on during a Jewish holiday. I should have a new date next week.” None of these statements were true. On November 16, 2018, respondent informed the client that he needed to reschedule the last court date. On February 6, 2019, respondent told him, “[W]e have a court date later this month. I’m going to ask the judge to allow me to file a motion for sanctions against them. They have not cooperated at all in discovery.” On June 25, 2019, respondent told the client that he attended a court conference and discussed the possibility of a settlement with the court attorney. None of these statements were true, as respondent still had not even filed a complaint.
On February 5, 2020, the client’s friend, a New York attorney, reached out to respondent to discuss the case and “play an active role” in it. In response, respondent stated, among other things, that he was out of state and wanted the attorney to hold off on filing a notice of appearance and that he wanted to discuss strategy with the attorney. Respondent later falsely told the attorney that the case was pending before Judge Debra James of the Supreme Court, New York County. Later that afternoon, the attorney learned that there was nothing on NYSCEF reflecting that a complaint had been filed on the client’s behalf. The attorney then sent respondent an email seeking an explanation and requesting a copy of the complaint be sent to him “immediately.”
Respondent falsely told the attorney that his paralegal had encountered problems when e-filing the initiating papers and that she had to file them in person. Respondent also sent the attorney a draft complaint under the guise that it was what he had filed with the court. On February 5, 2020, the attorney sent another email to respondent relaying a conversation he had with Justice James’ law clerk, in which he learned that Justice James had no case before her regarding the client. On February 6, 2020, respondent and the Sack Firm were discharged.
the attorney is subject to monitoring for a year after he serves the suspension. (Mike Frisch)