In the Matter of Yana Shtindler, a suspended attorney. Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, petitioner; Yana Shtindler, respondent. (Attorney Registration No. 3910353)
Maxfield Kearse, Brooklyn, NY (Colette M. Landers of
counsel), for petitioner.
Michael S. Ross, New York, NY, for respondent.
RANDALL T. ENG, P.J., REINALDO E. RIVERA, MARK C. DILLON,
RUTH C. BALKIN, JOHN M. LEVENTHAL, JJ.
OPINION & ORDER
PROCEEDING instituted by the Grievance Committee for the
Second, Eleventh, and Thirteenth Judicial Districts. The
respondent was admitted to the Bar at a term of the Appellate
Division of the Supreme Court in the Second Judicial
Department on March 7, 2001. By decision and order on
application of this Court dated July 31, 2015, the Grievance
Committee was authorized to institute and prosecute a
disciplinary proceeding against the respondent based on a
verified petition dated May 12, 2015, and the issues raised
were referred to the Honorable Charles J. Thomas, as Special
Referee, to hear and report.
opinion and order of this Court dated April 17, 2013, the
respondent was suspended from the practice of law for a
period of one year, commencing May 17, 2013, in a prior,
separate disciplinary proceeding under Appellate Division
Docket No. 2011-02834 (Matter of Shtindler, 106
Grievance Committee for the Second, Eleventh, and Thirteenth
Judicial Districts served the respondent with a verified
petition dated May 12, 2015, containing two charges of
professional misconduct. After a hearing conducted on January
19, 2016, the Special Referee issued a report which sustained
all charges. The Grievance Committee now moves to confirm the
Special Referee's report and impose such discipline upon
the respondent as the Court deems just and proper. The
respondent has submitted papers in support of the motion, and
asks that the Court impose a "tempered" sanction,
i.e., a one-year suspension nunc pro tunc to May 18, 2014.
Charge one alleges that the respondent engaged in the
practice of law while under an order of suspension, in
violation of rule 8.4(c) and (d) of the Rules of Professional
Conduct (22 NYCRR 1200.0). By opinion and order of this Court
dated April 17, 2013, the respondent was suspended from the
practice of law, commencing May 17, 2013. On April 19, 2013,
the respondent's attorney was served with a copy of the
order, as well as a copy of the Court's rules governing
the conduct of disbarred, suspended, or resigned attorneys
(former 22 NYCRR 691.10). Prior to her suspension, the
respondent represented Prime Aid Pharmacies (hereinafter
Prime Aid) as in-house counsel. Subsequent to her suspension,
on or about June 14, 2013, on Prime Aid stationery, the
respondent sent a letter to Thomas Faloon, of Pharmacy
BenefitDirect, a pharmacy benefit management company, in
which she stated that she was "general counsel" for
Prime Aid, and affixed her signature above the typed words
"Yana Shtindler, Esq."
about September 3, 2013, on Prime Aid stationery, the
respondent sent another letter to Mr. Faloon, in which she
again stated that she was "general counsel" for
Prime Aid, advised him that something he wrote in a letter
was "illegal, " and affixed her signature above the
typed words "Yana Shtindler, Esq." On or about
September 3, 2013, the respondent sent an e-mail to Mr.
Faloon, in which she again stated she was "general
counsel" for Prime Aid, and advised that he had
illegally disclosed confidential information to a third
two alleges that the respondent made false and misleading
statements to the Grievance Committee, in violation of rule
8.4(c) of the Rules of Professional Conduct (12 NYCRR
1200.0). In September 2013, the respondent received from the
Grievance Committee a complaint from Kristin K. C. Howard,
General Counsel and Director of Compliance at Pharmacy
BenefitDirect, alleging, inter alia, that, in correspondence
dated June 14, 2013, and September 3, 2013, the respondent
had represented herself as an attorney to Mr. Faloon,
although she was suspended from the practice of law. In her
answer to the complaint, the respondent stated, inter alia,
"I was advised by my attorney... that suspension went
into effect on July 15, 2013." At an examination under
oath on March 17, 2015, the respondent admitted that the
aforementioned statement in her answer was "false,
" in that she had received the suspension order from her
attorney on April 24, 2013, and that her attorney had advised
her over the phone that the effective date of her suspension
was May 17, 2013. At her examination under oath, the
respondent also admitted that, at the time she sent her June
14, 2013, letter to Mr. Faloon, she knew that she was under
on the evidence adduced, and the respondent's admissions,
the Special Referee properly sustained the charges.
Accordingly, the Grievance Committee's motion to confirm
the report of the Special Referee is granted.
hearing, the respondent candidly admitted the charges,
acknowledging that she was aware of her suspension when she
held herself out as "general counsel" to Prime Aid,
and acknowledged that it was wrong for her to have done so.
In mitigation, she explained that Prime Aid was a specialty
pharmacy, created and owned by her husband, that is run on a
business model that assists patients in obtaining access to
high-cost medications. Prime Aid's success caused
friction with Pharmacy BenefitDirect, a pharmacy benefit
manager, an entity that works for insurance companies. A
pharmacy benefit manager's goal is to reduce the number
of approved prescriptions by denying approval and/or
withholding payment, which saves the insurance company money,
but runs counter to the interest of the patient. Toward the
end of 2012, Pharmacy BenefitDirect started to audit Prime
Aid. Mr. Faloon was an auditor for Pharmacy BenefitDirect.
If, during an audit, too many errors are found, a pharmacy
will be terminated from the network. Ultimately, the audit
was resolved in Prime Aid's favor, but in June 2013, the
audit was still ongoing.
2013, the respondent was running the day-to-day operations of
the pharmacy. The letter in question, addressed to Mr.
Faloon, in which the respondent represented herself as
"general counsel, " was correspondence exchanged in
the course of the audit. The respondent testified that she
held herself out in such a fashion out of anger and pride,
and did not want to be disadvantaged in her dealings with Mr.
respect to sanctions, the respondent asks that the Court take
into consideration the following factors: her candor in
acknowledging the misconduct; her remorse; her serious health
issues that required her to undergo multiple surgeries; her
passion for helping Prime Aid's patients who are
afflicted with serious medical problems like her own; the
fact that the underlying misconduct was limited to
misrepresenting her attorney status during an audit of a
family business; and her generally excellent reputation for
honesty and integrity in her professional dealings, as
expressed in letters written by counsel who have since been
retained to represent Prime Aid in its legal affairs, which
were submitted at the hearing.
we note that the respondent held herself out as an attorney
in a single transaction, which she had been handling on
behalf of a family business, and was not attempting to earn
additional legal fees by completing a legal matter commenced
prior to her suspension, or taking on a new matter.
Considering this circumstance, as well as the factors cited
by the respondent and the fact that she has been continuously
suspended from ...