Opinion
M–2884
01-04-2018
In the MATTER OF Michael JOFFE, an attorney and counselor-at-law: Attorney Grievance Committee for the First Judicial Department, Petitioner, v. Michael Joffe, Respondent.
Jorge Dopico, Chief Attorney, Attorney Grievance Committee, New York (Kevin M. Doyle, of counsel), for petitioner. Gregg D. Weinstock, Esq., for respondent.
Jorge Dopico, Chief Attorney, Attorney Grievance Committee, New York (Kevin M. Doyle, of counsel), for petitioner.
Gregg D. Weinstock, Esq., for respondent.
Judith J. Gische, Justice Presiding, Richard T. Andrias, Cynthia S. Kern, Jeffery K. Oing, Anil C. Singh, Justices.
IN THE MATTER OF MICHAEL JOFFE, AN ATTORNEY
PER CURIAM
Respondent Michael Joffe was admitted to the practice of law in the State of New York by the Second Judicial Department on April 13, 1994. At all times relevant to this proceeding, respondent maintained an office for the practice of law within the First Judicial Department.
In 2016, the Attorney Grievance Committee (Committee) brought 10 charges against respondent alleging violations of New York Rules of Professional Conduct ( 22 NYCRR 1200.0 ) rules 1.1(a) (failure to provide competent representation), 1.3(a) (failure to act with reasonable diligence and promptness), 1.3(b) (neglect), 1.16(e) (failure to take reasonable steps to avoid foreseeable prejudice to client upon termination of representation), 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation), 8.4(d) (conduct prejudicial to the administration of justice), and 8.4(h) (other conduct adversely reflecting on fitness as a lawyer).
The charges stemmed from respondent's neglect of two immigration matters, and his false statements and submission of forged documents to the Committee during its investigation.In his answer respondent admitted the material facts alleged by the Committee, but neither admitted nor denied the charges and "defer[red] to the Court to reach legal conclusions regarding the [charges]."
A referee held a hearing on the charges at which the Committee called respondent's client, A.E., as a witness, and introduced evidence relating to respondent's representation of another client, A.A. Respondent testified on his own behalf.
In May 2009, respondent represented A.E., in her application for removal of the conditional basis for her "Green Card" and to obtain permanent resident status. A.E.'s conditional permanent resident status was to expire on September 7, 2009, and in fact did expire because respondent failed to timely file an
I–751 application. As a result, in October 2009, the U.S. Citizenship and Immigration Services (USCIS) informed A.E. that her Green Card had been canceled, and, thus, she became subject to deportation.
A.E. retained new counsel, G.S., who filed an I–751 application on her behalf. However, it was rejected because respondent had belatedly made such a filing on November 2, 2009 upon learning that A.E.'s Green Card had been canceled. In November 2009 and December 2010, G.S. requested that respondent forward A.E.'s file to him, but respondent did not turn over the file. G.S. eventually obtained A.E.'s file from the Office of the Immigration Court.
In March 2011, A.E. filed a complaint against respondent. Respondent submitted an answer in which he falsely stated that he had filed a timely I–751 application in June 2009, but later found out it was rejected because an incorrect filing fee was sent. Respondent adhered to these false statements when he appeared before the Committee for an examination under oath, and in an amended answer he submitted shortly thereafter. At a subsequent deposition and at the hearing, respondent admitted that he gave inaccurate information to the Committee, but denied that his statements were intentionally false and attributed them to mistaken recollection and incorrect assumptions on his part.
Respondent offered three excuses for his failure to turn over A.E.'s file to her new counsel: he claimed that the file was too cumbersome to mail; the mail could not be trusted to deliver it; and finally he admitted that he did not send the file because it was easier to have it picked up so that he did not have to go out of his way to the post office. Respondent ultimately conceded that he fell short in his duty to forward his client's file to her new counsel.
The Referee sustained charges one through five finding that respondent failed to provide A.E. with competent representation, failed to act with reasonable diligence and promptness in representing her, neglected her matter, failed to take steps to avoid foreseeable prejudice to A.E. by not promptly forwarding her file to successor counsel, and falsely represented to the Committee that he filed a timely I–751 application on A.E.'s behalf in violation of rules 1.1(a), 1.3(a), 1.3(b), 1.16(e), 8.4(c) and 8.4(d).
In October 2009, A.A. retained respondent to file an application to register permanent residence or to adjust status based on his marriage to a U.S. citizen. A.A. was also required to file an I–601 application for waiver of grounds of inadmissibility because he had previously entered the United States through the fraudulent use of a passport. Respondent filed the I–601 application in November 2010, but it was rejected in April 2011 for failure to pay the application fee. Respondent appealed the decision, but the appeal was rejected because of nonpayment of the application fee and respondent's failure to address the nonpayment in the appeal.
In December 2012, A.A. filed a complaint with the Committee against respondent. In his answer to the complaint, respondent falsely stated that he paid the I–601 application fee and had addressed the nonpayment issue in his appeal. To substantiate these false statements, respondent submitted an altered filing receipt from another matter and a copy of his notice of appeal which he altered to include a discussion of the fee payment issue. Notably, A.A. alleged in his complaint that he provided respondent with the filing fee for his I–601 application.
The Committee learned of respondent's deception in the A.A. matter by comparing the documents he submitted to the Committee with the actual documents he submitted to the USCIS. When confronted with them at his deposition, respondent admitted that he submitted falsified documents.
Based on respondent's admissions and the evidence presented, the Referee found that respondent failed to provide A.A. with competent representation, failed to act with reasonable diligence and promptness in representing him, neglected A.A.'s matter, and sought to mislead the Committee via his false statements in his answer to A.A.'s complaint and his submission of forged documents in violation of rules 1.1(a), 1.3(a), 1.3(b), 8.4(c), and 8.4(d) and accordingly sustained charges seven through nine.
The Referee did not sustain charges six and ten (violations of rule 8.4[h] ). Also, by way of a stipulation, respondent admitted charge seven which alleged violations of rules 1.1(a), 1.3(a), and 1.3(b) in connection with one of two of the immigration matters.
The Referee held a sanctions hearing. Respondent again testified on his own behalf, called two former clients as mitigation witnesses, and introduced documentary evidence. Respondent testified that he is a solo practitioner, has no secretarial or support staff, and must manage all aspects of his law practice himself. In addition, he is currently experiencing marital and familial conflicts. Respondent acknowledged that his marital issues were not causally related to his misconduct.
Respondent called two clients and submitted affidavits from two others each of whom attested that they were satisfied with the services he provided. In addition, he offered two letters he sent to A.E. and A.A. (two days before the sanctions hearing) in which he enclosed checks to each for $200 toward partial refunds of the legal fees they paid (A.E. paid $750 and A.A. paid $500) with the remaining balances to be paid in installments.
Respondent expressed remorse for his misconduct. He acknowledged that he made a mistake and that he was wrong to try to cover up his error, a response he said was the result of fear.
In aggravation, the Committee introduced three prior Admonitions. In 2006 respondent was admonished for neglect of a client's immigration matter; in 2011 he was admonished for inadequate record keeping with respect to client funds he deposited into his attorney special account; and in 2013 he was admonished for using a retainer agreement which contained an impermissible nonrefundable retainer fee clause.
Respondent failed to notify his client that a hearing on his political asylum application had been ordered and the client was ordered deported in absentia. A copy of the deportation order was sent to respondent, but he took no steps to contact his client. The client retained new counsel and was able to re-open the proceeding.
The Referee found that respondent's misconduct was aggravated by the vulnerability of his two immigration clients; his repeated false statements to the Committee and at the hearing that his representation that he filed a timely I–751 application on A.E.'s behalf was inadvertent; his submission of falsified documents to the Committee in connection with the A.A. matter; and his three prior Admonitions, one of which the Referee found bore strong similarity to his current misconduct. The Referee noted that respondent admitted that his marital difficulties did not contribute to his misconduct. The Referee further noted that respondent did not present evidence of good character, pro bono work, community service, or contributions to, or good standing in, the legal community. His voluntary payment of child support weighed in his favor. The Referee also noted that respondent had made partial refunds to his aggrieved clients and accepted his counsel's representation that the unpaid balances would be remitted within the next several months. As to his remorse, the Referee found that "[r]espondent's verbal expression of contrition was not borne out by his demeanor, which conveyed little genuine remorse or regret (or, for that matter, any other emotion)."
The Referee cited to, inter alia, Matter of Meyers, 108 A.D.3d 158, 965 N.Y.S.2d 499 (1st Dept. 2013) in which the attorney was suspended for two years for, inter alia, neglecting three immigration matters and misrepresentations to his clients and fabricating documents to conceal his neglect. Meyers had two prior Admonitions for similar misconduct and mitigation included mental health issues and financial obligations for his elderly mother and two college age children. The Referee also cited to Matter of Samuely, 80 A.D.3d 163, 911 N.Y.S.2d 295 (1st Dept. 2010) and Matter of Cohen, 40 A.D.3d 61, 831 N.Y.S.2d 141 (1st Dept. 2007).
The Referee concluded that respondent be suspended from the practice of law for two years.
The Referee also noted that because respondent's initial failures of omission may have been related to his being a solo practitioner the Court may wish to impose a requirement that respondent take a CLE course in small law office practice management before resuming the practice of law. The Committee did not seek imposition of this recommendation as an additional sanction. As such, we decline to address the merits of this recommendation.
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The Committee seeks an order, pursuant to the Rules for Attorney Disciplinary Matters ( 22 NYCRR) § 1240.8(b) and the Rules of the Appellate Division, First Department (22 NYCRR) § 603.8–a(t), affirming the Referee's liability findings and the sanction recommendation of suspending respondent for two years.
Respondent opposes the motion to the extent that it seeks to affirm the Referee's two-year suspension recommendation, and requests this Court impose no greater sanction than a three-month suspension. He further contends that this Court has imposed suspensions of three to six months for arguably similar misconduct and cites to, inter alia, Matter of Brenner, 44 A.D.3d 160, 840 N.Y.S.2d 349 (1st Dept. 2007), Matter of Becker, 24 A.D.3d 32, 804 N.Y.S.2d 4 (1st Dept. 2005), and Matter of Chazan, 252 A.D.2d 323, 685 N.Y.S.2d 189 (1st Dept. 1999). Respondent contends that a two-year suspension is too harsh a sanction under the circumstances because, inter alia, at the time of his misconduct he was faced with a sudden separation from his wife with whom he is now involved in an adversarial divorce proceeding, and he is voluntarily paying child support for his teenage daughter, such that a long suspension would make it difficult for him to continue to do so.
In addition, respondent points to the fact that none of the charges against him concerned dishonesty or selfish motive with respect to client funds. To date he has refunded $400 to A.E. and $600 to A.A., and will pay the remaining balances owed them in the near future. His three prior Admonitions did not concern matters in which he acted dishonestly and none of the clients suffered actual harm. He argues that a long suspension would force his immigration clients, many of whom have hearings scheduled in 2017 and 2018, to find new counsel, which may be difficult for them due to financial and other reasons.
Lastly, respondent avers that the purpose of New York's Rules of Professional Conduct is to ensure that the public receives competent and ethical representation, and contends a lesser sanction than a two-year suspension is sufficient to put him, the legal profession, and the public on notice that the misconduct at issue will not be tolerated.
The Committee contends that respondent's request for no greater sanction than a three-month suspension is inappropriate because this Court has recognized that financial and family hardships are inherent in any significant suspension, but are not sufficient to avoid such sanction when merited (see Matter of Alperin , 66 A.D.3d 309, 313, 885 N.Y.S.2d 261 [1st Dept. 2009] ; Matter of Leavitt , 291 A.D.2d 37, 39, 738 N.Y.S.2d 313 [1st Dept. 2002] ). The Committee further notes that the Referee's findings that respondent continued to lie that he mistakenly stated that he filed a timely I–751 application on A.E.'s behalf, and that he expressed insincere remorse are well founded. Lastly, the Committee points out that respondent admitted that his marital issues were not causally linked to his misconduct.
The Referee's findings are firmly supported by the record and should be affirmed. As to the sanction, the Referee's recommendation of a two-year suspension is in accord with this Court's precedent involving similar misconduct, and is appropriate given respondent's neglect of two client matters which he compounded by his false statements and submission of fabricated documents to the Committee, and which is aggravated by his lack of sincere remorse and three prior Admonitions (see e.g. Matter of Maranga , 151 A.D.3d 31, 53 N.Y.S.3d 641 [1st Dept. 2017] ; Matter of Meyers , 108 A.D.3d at 158, 965 N.Y.S.2d 499 ; Matter of Samuely , 80 A.D.3d at 163, 911 N.Y.S.2d 295 ; Matter of Alperin , 66 A.D.3d at 309, 885 N.Y.S.2d 261 ; Matter of Cohen , 40 A.D.3d at 61, 831 N.Y.S.2d 141 ; Matter of O'Shea , 25 A.D.3d 203, 804 N.Y.S.2d 307 [1st Dept. 2005] ; Matter of Leavitt , 291 A.D.2d at 37, 738 N.Y.S.2d 313.
Accordingly, the Committee's motion should be granted, the Referee's findings of fact and conclusions of law are affirmed, and respondent is suspended from the practice of law in the State of New York for a period of two years and until further order of the Court.
All Concur.