Thursday, May 26, 2011

Non-Refundable Fees Get Attorney Suspended

An attorney admitted to practice in 1964 has been suspended for six-months by the New York Appellate Division for the First Judicial Department for charging non-refundable retainers and failing to include information regarding arbitration in her retainer agreements. The attorney had also conditioned a civil settlement on the withdrawal of a bar complaint.

The court noted a prior admonition for charging non-refundable retainers and rejected the attorney's plea for a public censure:

Respondent argues in mitigation and in support of her request for public censure that she was 69-years-old at the time of the hearing, that she had practiced immigration law since 1968 opening her own practice in 1970, that she had served talented artists and musicians, that she did not intend to violate disciplinary rules and apologized for having done so, and that she promised never to do anything of that nature again. She also claimed that her poorly controlled diabetes made her forgetful and she would take precautions and put into effect systems to compensate for the effect of the ailment. She relied on the testimony of her internal medicine-cardiologist physician concerning the impact of the disease. She expressed remorse for ignoring the prior Admonition concerning the "non-refundable" provision in her retainer agreement, and averred that she had always refunded unearned fees. Respondent now states that she has begun to implement procedures, including a monitoring program, that will insure that she does not take any such missteps again. In addition, respondent points to the fact that she represented many clients pro bono and worked extensively in Europe and the Middle East, representing individuals who were threatened for political reasons.

While there are no cases directly on point, this case comes closest to Matter of Rodkin, 21 AD3d 111 (2005), also involving an immigration attorney. In that case, the lawyer improperly obtained clients from travel agencies, thus aiding the unauthorized practice of law. He had also been previously admonished for the same type of misconduct for which he was charged.

A hearing panel had proposed a nine-month suspension. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2011/05/an-attorney-admitted-to-practice-in-1964-has-been-suspended-for-six-months-by-the-new-york-appellate-division-for-the-first-j.html

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