In the Matter of Diane Serafin Blank, an attorney and counselor-at-law: Departmental Disciplinary Committee for the First Judicial Department, Petitioner, Diane Serafin Blank, Respondent.
Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department. Respondent, Diane Serafin Blank, was admitted to the Bar of the State of New York at a Term of the Appellate Division of the Supreme Court for the First Judicial Department on February 14, 1972.
Jorge Dopico, Chief Counsel, Departmental Disciplinary Committee, New York (Orlando Reyes, of counsel), for petitioner.
No appearance for respondent.
Angela M. Mazzarelli, Justice Presiding, David Friedman, Leland G. DeGrasse, Helen E. Freedman, Sallie Manzanet-Daniels, Justices.
Respondent Diane Serafin Blank was admitted to the practice of law in the State of New York by the First Judicial Department on February 14, 1972. At all times relevant to this proceeding, she has maintained a law practice within this Department.
The Departmental Disciplinary Committee now seeks an order pursuant to 22 NYCRR 605.15(e), confirming findings of misconduct by the Hearing Panel, and imposing a sanction of disbarment. This disciplinary proceeding arises out of complaints about respondent related to her handling of two separate client matters. One client, who retained respondent to represent her in a divorce action, asserted that respondent failed to take action in the case for 10 months, while holding a $3, 115.50 balance from the retainer and failing to respond to messages. Respondent submitted a response to the complaint, in which she acknowledged the allegations, apologized to the client and expressed a desire to rectify any problems she had caused. She attributed her inaction to a series of health problems beginning in November 2006, including a malignant melanoma, two surgeries to remove abscesses from her pelvis, surgery on both wrists to treat carpal tunnel syndrome, bowel surgery, cataract surgery, and depression. Respondent also mentioned that she was experiencing dire financial difficulties, and that she had earned under $1, 000 in profit from her law practice in the prior year.
On June 30, 2009, the Committee issued a Letter of Admonition in connection with the matter (and respondent's representation of a client in a separate divorce proceeding.) In so doing, the Committee considered the severe health and financial difficulties respondent was experiencing and her efforts to make amends, including refunding the retainer in the separate matter. The Committee informed respondent that it expected her to expeditiously complete the divorce matter and warned that, in light of prior Admonitions, further misconduct would likely result in charges and the pursuit of more serious discipline. Nevertheless, on April 23, 2010, the client renewed her complaint, asserting that she had been unable to communicate with respondent since April 2008 and that no progress had been made on her divorce. Respondent failed to respond to the complaint. On October 12, 2010, the client obtained a judgment from the Small Claims Court against respondent in the amount of $5, 057.50, which respondent did not satisfy. When questioned under oath about her continued neglect of the matter, respondent admitted that she had no defenses to the complaint.
The second client matter out of which this proceeding arises was an estate matter in which respondent represented a beneficiary in a matter pending in Surrogate's Court, New York County. The client gave respondent a $2, 500 retainer. On July 28, 2010, the client filed a complaint with the Committee, asserting that respondent failed to perform any services in her matter, failed to communicate with her, and failed to refund her retainer. On October 26, 2010, the client obtained a judgment from the Small Claims Court against respondent in the amount of $2, 595, which amount respondent has failed to pay.
On May 15, 2012, the Committee filed charges alleging 10 violations of the Rules of Professional Conduct. The charges alleged that respondent violated Rule 1.3(b), Rule 1.4(a)(3), Rule 1.16(e)(two counts), Rule 8.4(c), Rule 8.4(d)(four counts), and Rule 8.4(h), by, inter alia, neglecting two clients' matters, failing to return unearned fees and satisfy two judgments, and failing to cooperate with the Committee's investigation. Respondent did not formally answer the charges, but initially participated in the investigation by, inter alia, appearing at two depositions. At the depositions, respondent attributed her conduct to her being "very ill and very depressed." She testified that she had undergone numerous surgeries, become increasingly depressed, lived on Social Security, had borrowed money from her estranged husband in order to avoid eviction, and indicated her wish to resign from the bar. Respondent further discussed the series of health problems she had, with her most recent surgery crippling her until May 2010, and that she had suffered from depression for many years. Respondent testified that her severe depression recurred in her 30's and again in 1997, following a health scare, her mother's death years earlier, the break-up of her marriage and IRS problems. Respondent stated that she had not satisfied the judgments obtained against her by her clients because she lived on $1, 035/month in Social Security. She testified that she was taking medication for depression and seeing a psychiatrist, for which she claimed to have documentation but which she did not submit.
Respondent challenged the need for a formal answer, stating: "Why do I have to.... take my poor brain that can barely remember where I am and write something down. I can't do it... I want out of this... I just can't do this anymore." Respondent hoped not to resume work on the complainants' cases, stating "I don't think I'm capable of doing it anymore" and "I'd like to resign." Respondent stated that she only had one active client matter and had told those clients that she was retiring.
On July 12, 2012, the Referee held a liability hearing. Respondent failed to appear and, following the Committee's submission of documentary evidence to support the charges and evidence that respondent had adequate notice of the charges and the hearing, the Referee deemed the charges admitted pursuant to 22 NYCRR 605.12(c)(4). On July 19, 2012, the Referee heard testimony and received evidence from the Committee relating to the sanction, including five prior Letters of Admonition as aggravation, and evidence to show that respondent had adequate notice of the sanction hearing. Four of the Letters of Admonition were related to respondent's neglect of client matters, and several mentioned respondent's clinical depression. The Committee also submitted statements from the complainants at the sanction hearing. In her affidavit, the divorce client stated that, because of respondent's conduct, she has been unable to afford a new attorney and complete her divorce, subjecting her to potential action by her husband's debtors.
Based upon the sustained charges and respondent's default, the Committee recommended disbarment. In a report dated September 6, 2012, the Referee sustained all the charges based upon respondent's failure to answer the complaint and contest the charges, resulting in the charges being deemed admitted. This finding was also based upon the evidence adduced at the liability hearing. With regard to the divorce client, the Referee found that respondent: neglected a legal matter in violation of Rule 1.3(b); engaged in dishonesty, fraud, deceit and misrepresentation in violation of Rule 8.4(c), when she falsely promised to conclude the divorce; failed to refund an unearned fee in violation of Rule 1.16(e); and engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(d), in failing to satisfy the Small Claims judgment and comply with the Committee's directive that she expeditiously complete the matter.
With regard to the estate client, the Referee found that respondent: failed to keep a client reasonably informed as to the status of a legal matter in violation of Rule 1.4(a)(3); failed to refund an unearned fee in violation of Rule 1.16(e); and engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(d), in failing to satisfy the Small Claims judgment. The Referee further found that respondent engaged in conduct detrimental to the administration of justice in violation of Rule 8.4(d), in failing to register as an attorney and engaged in ...