Charge It!
Reciprocal discipline was imposed by the New York Appellate Division for the Second Judicial Department in the form of a one-year suspension in a matter where a suspension of no more than ten months nunc pro tunc was imposed in Massachusetts
On or about February 21, 2019, the respondent represented James Colimon in a divorce proceeding. In relevant part, the retainer agreement provided, “the Client will be billed each month and the bill will state the hourly work of the Attorney as well as any fees. The payment of these bills will come from the $5000.00 retainer.” The retainer was paid in two installments, $500 paid on Colimon’s American Express credit card, and the remaining $4,500 paid on his Visa credit card. The respondent recorded Colimon’s American Express credit card information in her client tracking software without Colimon’s knowledge or consent. Apart from the retainer fee, the respondent was not authorized to initiate additional charges on Colimon’s credit card. The retainer fee was deposited into the respondent’s IOLTA account on February 25, 2019, and on March 18, 2019, respectively.
On February 25, 2019, April 17, 2019, and July 15, 2019, the respondent withdrew a portion of the retainer from the IOLTA account for payment of her earned legal fees. Prior to any of these withdrawals, the respondent did not provide Colimon, in writing, with: (1) an itemized bill or other accounting of services rendered, (2) notice of the amount and date of the withdrawals, or (3) a statement of the balance of Colimon’s funds in the respondent’s IOLTA account. From February 21, 2019, through and including December 17, 2019, the respondent failed to provide Colimon with any bill for her legal services. On or about December 17, 2019, Colimon instructed the respondent to cease work on his matter until such time as she provided him with a bill. On January 3, 2020, the respondent provided Colimon with an invoice dated December 28, 2019 (hereinafter the December 2019 bill), along with two iterations of a statement indicating the amount due for legal services rendered. On the December 2019 bill, and in the two statements, the respondent misrepresented to Colimon that she withdrew his entire $5,000 retainer for payment of legal services on January 2, 2020, and demanded an additional $13,490 for legal services.
On or about January 21, 2020, Colimon sent the respondent a letter wherein he disputed the charges, because he had already told the respondent that he did not want to spend more than $10,000 on the divorce proceeding, and noted that he was not provided with a monthly invoice and was not informed of the balance of his $5,000 retainer. Colimon enclosed a check for $8,000 marked “final payment” on the memo line of the check, which the respondent deposited into her IOLTA account on or about February 3, 2020.
Subsequently, on or about March 13, 2020, the respondent intentionally charged $5,000 on Colimon’s American Express credit card without his knowledge or consent. On or about April 8, 2020, Colimon demanded a $5,000 refund, which the respondent made belatedly.
(Mike Frisch)