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.
Decided on March 13, 2012
SUPREME COURT, APPELLATE DIVISION First Judicial Department
Angela M. Mazzarelli, Justice Presiding, Richard T. Andrias Karla Moskowitz Rosalyn H. Richter Sallie Manzanet-Daniels, Justices.
Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department. Respondent, David M. Shearer, admitted to the Bar of the State of New York at a Term of the Appellate Division of the Supreme Court for the Second Judicial Department on January 13, 1988. Jorge Dopico, Chief Counsel, Departmental Disciplinary Committee, New York (Jeremy S. Garber, of counsel), for petitioner. Michael S. Ross, for respondent. M-5824 M-307 January 28, 2011 IN THE MATTER OF DAVID M. SHEARER, AN ATTORNEY
Respondent, as David Michael Shearer, was admitted to the practice of law in the State of New York by the Second Judicial Department on January 13, 1988. At all times relevant to these proceedings, he maintained an office for the practice of law within the First Judicial Department.
On October 14, 1997, respondent, on behalf of his firm, Shearer & Essner, LLP, entered into an agreement with a Maryland attorney, Dov Apfel, under which respondent was to participate as co-counsel in a medical malpractice action to be prosecuted in New York. The agreement, which required respondent to prepare and file documents to enable Apfel to be admitted to practice law in New York pro hac vice, provided that, in consideration for his services, respondent would receive 50% of the total legal fee.
Apfel had been retained by Margaret Leskinen on May 12, 1997 to prosecute the action on behalf of her son, Michael, who sustained brain damage during labor and delivery in June 1988. Apfel's retainer authorized him to retain New York counsel and to work out an agreement to divide the legal fees.
In 1998, respondent filed the malpractice action in Supreme Court, Bronx County (Leskinen v Fusco, Index No. 15135/96). Thereafter, he handled all aspects of the case, without taking any steps to have Apfel admitted in New York. In July 2003, respondent settled the action for $4.25 million. On August 6, 2003, he notified Apfel and told him that payment of 50% of the $574,047.01 legal fee would be unfair as Apfel breached the participation agreement by failing to render any legal services. A bitter dispute over the fee ensued.
On September 26, 2003, respondent filed a Retainer Statement for the malpractice action, dated September 22, 2003, with the Office of Court Administration (OCA). The Retainer Statement indicated that there was a September 10, 1998 retainer agreement between Mrs. Leskinen and respondent's firm and that the delay in filing was "[d]ue to an administrative error in my office."
In May 2005, this Court, (18 AD3d 387 , lv dismissed 6 NY3d 807 ), ruled that Apfel was entitled to 50% of the disputed legal fee, rejecting respondent's argument that Apfel was not entitled to share in the fee because he engaged in the unauthorized practice of law. Noting that "[respondent] attempted to appropriate the entire fee through the subterfuge of a proposed infant's compromise order that did not disclose [Apfel's] claim to half of the fee and the fact that such claim was then being actively litigated before another justice," we remanded the matter to Supreme ...