In the Matter of D. Andrew Marshall (admitted as Darrell Andrew Marshall), an attorney and counselor-at-law. Attorney Grievance Committee for the First Judicial Department, Petitioner, D. Andrew Marshall, Respondent.
proceedings instituted by the Attorney Grievance Committee
for the First Judicial Department. Respondent, D. Andrew
Marshall, 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 June 19, 1995.
Dopico, Chief Attorney, Attorney Grievance Committee, New
S. Garber, of counsel, for petitioner. Respondent pro se.
Rolando T. Acosta, Justice Presiding, Rosalyn H. Richter,
Sallie Manzanet-Daniels, Judith J. Gische, Troy K. Webber,
Darrell Andrew Marshall was admitted to the practice of law
in the State of New York by the First Judicial Department on
June 19, 1995. At all times relevant to this proceeding,
respondent maintained an office for the practice of law
within the First Department.
2015, the Attorney Grievance Committee brought 10 charges
against respondent, alleging violations of New York Rules of
Professional Conduct (22 NYCRR 1200.00) rules 1.3(a), 1.3(b),
8.4(c), 8.4(d), and 8.4(h), based on respondent's neglect
of a client matter and his fabrication of settlement
documents which were presented to his client, the Committee,
and filed with OCA. Respondent, pro se, submitted an answer
denying all of the charges. Respondent appeared before the
Committee for an examination under oath, at which he admitted
to engaging in the conduct underlying the charges. After a
hearing was conducted, the Committee withdrew one charge, and
in a report, the Referee sustained seven of the remaining
nine charges. In a second report, the Referee recommended
that respondent be suspended for five months following which
he be automatically reinstated.
Committee now 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 suspending respondent for no less than five months.
Respondent has filed a cross motion, disputing the
Referee's finding that he violated rules 1.3(a) and
1.3(b), and requesting that this Court disaffirm the
Referee's sanction recommendation of a five-month
suspension, and in lieu thereof, impose no greater sanction
than a public censure.
reasons explained below, we now confirm the Referee's
report to the extent of the liability findings and agree with
the Referee that respondent should be sanctioned and
suspended from the practice of law, but impose a three-month
about November 2011, a client retained respondent for a
traffic incident in which the client alleged was wrongfully
ticketed, detained, and charged with disorderly conduct by
New York City police officers. The client executed a retainer
agreement with respondent, in which respondent agreed to
pursue personal injury/civil rights/torts claims against the
New York City Police Department and the City of New York.
Respondent also agreed to represent the client pro bono on
the disorderly charge, which was ultimately dismissed.
Respondent executed a notice of claim filed with the New York
City Comptroller's Office, which was untimely because it
was not filed within 90 days of the traffic incident.
2012, respondent commenced an action in Supreme Court, New
York County, and the New York City Corporation Counsel's
Office answered and demanded a bill of particulars and
discovery. Subsequently, respondent and the client met with
representatives from Corporation Counsel's and
Comptroller's Offices, and was offered a settlement of
$4, 500, contingent upon a timely notice of claim, which the
client accepted. Following the meeting, respondent realized
that the notice of claim was untimely, but believed in his
view there was a viable claim for malicious prosecution.
However, due to respondent's deteriorating relationship
with the client over the course of this matter, instead of
re-filing in federal court or seeking leave to file a late
notice of claim, respondent elected to pay the client out of
his own funds.
respondent presented the client with a check for the
settlement after deducting expenses and his attorney fees, he
presented the client with an OCA mandated closing statement
falsely stating he filed a stipulation of discontinuance with
the court. In connection with the client's complaint
against respondent, he filed the false closing statement with
OCA, and produced these filings to the Committee. Respondent
also stated, in response to the Committee's request, that
he would produce copies of the purported settlement check
issued by the City and bank statements evincing the deposit
of said check.
deposition, respondent admitted there had been no actual
settlement, and that he had paid the client with his personal
funds. Accordingly, the Referee correctly found that
respondent's actions violated rules 1.3(a), 1.3(b),
8.4(c), 8.4(d), and 8.4(h).
mitigation, respondent has no prior disciplinary history in
21 years of practice, and his neglect and subsequent
misrepresentations were limited to one client matter.
Respondent made his client financially whole, he did not
profit financially, and fully admitted his misconduct when he
testified before the Committee. Further, respondent has a