DISCIPLINARY proceeding instituted by the Grievance Committee for the Tenth Judicial District. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on June 1, 1988, under the name Mark Owen Wasserman. By decision and order on application dated June 14, 2007, the Grievance Committee was authorized to institute and prosecute a disciplinary proceeding against the respondent and the issues raised were referred to the Honorable Vincent Pizzuto, as Special Referee to hear and report.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
A. GAIL PRUDENTI, P.J., WILLIAM F. MASTRO, REINALDO E. RIVERA, ROBERT A. SPOLZINO & MARK C. DILLON, JJ.
The Grievance Committee for the Tenth Judicial District (hereinafter the Grievance Committee) served the respondent with a verified petition dated March 5, 2007, containing eight charges of professional misconduct. After a preliminary conference on October 22, 2007, and a hearing on December 13, 2007, the Special Referee sustained all eight charges. The Grievance Committee now moves to confirm the Special Referee's report and to impose such discipline upon the respondent as the Court deems just and proper. The respondent's counsel has submitted an affirmation in response requesting that the Court, in making its determination as to whether the imposition of sanctions is appropriate, give careful consideration to the mitigating factors present, the corrective measures undertaken by the respondent, and the Special Referee's finding relative to the credibility and remorse demonstrated by the respondent.
Charge one alleges that the respondent neglected a legal matter entrusted to him by failing to properly commence and pursue a breach of contract action on behalf of his client, Yefim Melamed, and by failing to communicate with that client with respect to that same matter, in violation of Code of Professional Responsibility DR 6-101(a)(3) (22 NYCRR 1200.30[a]).
On or about May 14, 2003, the respondent entered into a retainer agreement with Melamed whereby he agreed to represent him and two companies under his control, Alliance Human Resources, Inc., and Human Problem Solutions, Inc., in a breach of contract action against Dr. Mamedova Braz, Maya Gurevich, and Community Related Services, Inc. (hereinafter collectively the Braz defendants). On or about May 20, 2003, the respondent received the sum of $20,000 towards the $30,000 initial retainer.
On or about October 14, 2003, the respondent filed a summons and verified complaint dated September 12, 2003, in the Supreme Court, Nassau County, in connection with the Melamed action. The pleadings were inconsistent in that the summons named Melamed as the sole plaintiff while the complaint named three plaintiffs. Moreover, the complaint filed contained blanks in the body of the text and handwritten notations in the margin.
Although Melamed alerted the respondent to the incorrect captions, the respondent failed to amend them. The respondent failed to serve the Braz defendants within the statutorily- prescribed time.
On or about August 30, 2004, the respondent recommenced the Melamed action by filing a summons with notice, also dated September 12, 2003, in the Supreme Court, Nassau County, under a new index number. That summons still incorrectly listed Melamed as the sole plaintiff. He served it on the Braz defendants on or about August 31, 2004.
The Braz defendants made a demand, on or about September 8, 2004, that a verified complaint be served upon them within 20 days. The respondent took no further action and, at times during his representation, failed to disclose to Melamed the status of the action.
Charge two alleges that the respondent handled a legal matter which he knew he was not competent to handle, without associating with an experienced lawyer and failing to seek assistance in the Melamed matter, in violation of Code of Professional Responsibility DR 6-101(a)(1) (22 NYCRR 1200.30[a]).
The respondent's experience primarily consisted of criminal and matrimonial law. Although he undertook the representation of Melamed in a breach of contract action, he had limited familiarity with commercial civil litigation and failed to seek assistance from or associate with a lawyer competent in that field.
Charge three alleges that the respondent engaged in conduct that adversely reflects on his fitness as a lawyer by neglecting a legal matter entrusted to him and by attempting to handle a type of case he was not competent to handle alone, in violation of Code of Professional Responsibility DR 1-102(a)(7) (22 ...