Friday, May 11, 2018

A Runner Named Samantha

Disbarment has been imposed by the New York Appellate Division for the First Judicial Department for misconduct after suspension

In August 2015, the Attorney Grievance Committee (Committee) commenced an investigation into respondent's conduct after receiving complaints from two former clients alleging neglect and that after respondent approached them in a Bronx courthouse and asked about their cases, he offered his legal services and they retained him. Respondent submitted answers to the complaints, although he did not expressly address the allegation of in-person solicitation.

By order entered October 26, 2017, this Court granted the Committee's motion for respondent's immediate suspension for failing to appear pursuant to subpoena and to comply with lawful demands by the Committee (see 155 AD3d 61 [1st Dept 2017]). The Committee served the suspension order on respondent by priority and certified mail, and according to the return receipt and tracking information, respondent received both copies of the suspension order on October 30, 2017.

In November 2017, respondent filed a motion seeking his reinstatement stating, inter alia, that he was in discussions with the complainants to resolve their grievances and that he was submitting a supplemental statement denying the allegations of in-person solicitation. Attached to respondent's motion were two checks dated November 2, 2017, totaling $250 from him to one of the two complainants with the memo line referring to "consideration for waiver of Grievance," a letter from him to the Committee advising that the client had waived her grievance against him, and that as of November 12, 2017, he and the other complainant "agreed in principle to terms for him to waive his grievance."

The Committee opposed and the court denied reinstatement

The following facts are taken from a complaint filed with the Committee in December 2017, from documents submitted by the complainant, and from an affidavit executed by the complainant. The complainant stated that on October 26, 2017 (the date of this Court's order of immediate suspension), an individual named "Samantha," who claimed to be respondent's associate, approached him at the Bronx County Civil courthouse and asked if he needed the assistance of an attorney with his landlord tenant matter; respondent was also present at the time. After speaking with "Samantha" and respondent, the complainant agreed to retain respondent for a $1,000 fee, to be paid in installments. The complainant paid the first installment of $300 that day, for which respondent provided a receipt, and complainant executed a retainer agreement for legal services.

Notwithstanding having been served with this Court's suspension order on October 30, 2017 and filing his motion for reinstatement with this Court on or about November 4, 2017, respondent, on November 10, 2017, telephoned complainant asking for the next $300 installment. That day complainant met respondent and "Samantha" at a restaurant near the Bronx courthouse and gave him the additional $300 payment. Respondent provided him with a second receipt, which they both signed, and which had written at the top "Brian D. Thomas, Esq. Senior Partner, Trial Attorney Law Office of Brian D. Thomas, Esq." When asked, respondent admitted that he had not yet commenced complainant's case...

The Committee contends that it has provided incontrovertible evidence that respondent sought to provide legal services to a new client on and after the effective date of his suspension, even though he was aware that he was suspended. The Committee has indeed established that respondent engaged in the unauthorized practice of law by continuing to seek installment payments of his legal fee and continuing to represent the complainant after he was suspended. However, because respondent did not receive notice of this Court's October 26, 2017 order of suspension until October 30, 2017, he was not yet aware of his suspension when he entered into the retainer agreement with the complainant on October 26. Regardless, respondent violated this Court's order of suspension, 22 NYCRR 1240.15 and Judiciary Law §§ 478, 484 and 486, by holding himself out as an attorney entitled to practice law when he met with the complainant on November 10, by accepting the second installment of legal fees and by providing a receipt which still identified himself as an "attorney" (see Matter of Sampson, 145 AD3d at 97-98; Matter of Rosabianca, 131 AD3d at 216-218; Matter of McDowall, 33 AD3d 246 [4th Dept 2006]). Moreover, respondent violated Judiciary Law § 479 by his and "Samantha's" improper solicitation of the complainant at the Bronx courthouse. Additionally, respondent has failed to answer the complaint and has defaulted on this motion (Matter of Hyde, 148 AD3d 9 [1st Dept 2017]).

In light of the undisputed evidence that respondent continued to hold himself out as an attorney while suspended, disbarment without further proceedings is warranted.

Accordingly, the Committee's motion should be granted, respondent disbarred from the practice of law, and his name stricken from the roll of attorneys and counselors-at-law in the State of New York, effective immediately.

(Mike Frisch)

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