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In re Frishberg

Supreme Court of New York, First Department

June 28, 2018

In the Matter of Aaron D. Frishberg, (admitted as Aaron David Frishberg), an attorney and counselor-at-law: Attorney Grievance Committee for the First Judicial Department, Petitioner, Aaron D. Frishberg, Respondent.

          Disciplinary proceedings instituted by the Attorney Grievance Committee for the First Judicial Department. Respondent, Aaron D. Frishberg, 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 May 4, 1987.

          Jorge Dopico, Chief Attorney, Attorney Grievance Committee, New York (Norma I. Melendez, of counsel), for petitioner.

          Lennox S. Hinds, Esq. for respondent.

          David Friedman, Justice Presiding, Dianne T. Renwick Richard T. Andrias Anil C. Singh Peter H. Moulton, Justices.

          PER CURIAM.

         Respondent Aaron D. Frishberg was admitted to the practice of law in the State of New York by the First Judicial Department on May 4, 1987, under the name Aaron David Frishberg. At all times relevant to this proceeding, respondent maintained an office for the practice of law within the First Department.

         In 2016, the Attorney Grievance Committee (Committee) brought six charges against respondent. In January 2017, respondent stipulated to four of the six charges, admitting that by failing to comply with three deadlines for perfecting an appeal he: failed to provide competent representation in violation of New York Rules of Professional Conduct (RPC) (22 NYCRR 1200.0) rules 1.1(a); failed to act with reasonable diligence and promptness in representing a client in violation of 1.3(a); neglected a legal matter entrusted to him in violation of 1.3(b); and engaged in other conduct that adversely reflects on fitness as a lawyer in violation of 8.4(h). Respondent denied that he failed to keep a client reasonably informed about the status of his case in violation of RPC rule 1.4(a)(3) and failed to promptly comply with a client's reasonable requests for information in violation of rule 1.4(a)(4).

         The Committee seeks an order, pursuant to Judiciary Law § 90(2) and the Rules for Attorney Disciplinary Matters (22 NYCRR0 § 1240.8(b) and the Rules pf the Appellate Division, First Department (22 NYCRR) 603.8-a(t)(4), affirming the Referee's liability findings and suspending respondent for no less than one year. For the reasons explained below, we now affirm the Referee's report to the extent of the liability findings and agree with the Referee that respondent should be suspended from the practice of law, but we impose a six-month suspension.

         The aforementioned disciplinary charges stem from respondent's handling of the case of his client, LL a 35-year old college graduate. On May 8, 2006, LL retained respondent to represent him in connection with a tort/civil rights action. LL alleged that on May 27, 2005 his sister and members of the New York City Police Department engineered his seven-day long psychiatric commitment and detention when he was not a danger to himself or others.

         With regard to these allegations, in May 2006, respondent commenced an action in Supreme Court, New York County, which the court eventually dismissed as untimely commenced. Subsequently, in January 2009, respondent commenced a federal action, based on the same allegations, against the same defendants in the Southern District alleging, inter alia, civil rights violations under 42 USC § 1983 and related state law claims. On February 16, 2010, the district court dismissed LL's federal claims as time-barred and declined to exercise supplemental jurisdiction over the state law claims, which were also dismissed. In 2010, LL filed a disciplinary complaint and in October 2011, the Committee issued an Admonition to respondent based on his neglect of LL's state and federal court actions.

         In September 2011, respondent filed a notice of appeal from the Supreme Court's judgment dismissing LL's action. The time to perfect the appeal was June 22, 2012 but respondent failed to do so. Three months later, respondent moved this Court for an enlargement of time within which to perfect the appeal. Defendants cross-moved for dismissal of the appeal based on LL's failure to perfect in a timely manner. This Court granted respondent an extension to the February 2013 Term (filing deadline of December 3, 2012) and the cross motion was granted unless the appeal was perfected for February 2013.

         When respondent failed to meet the December 2012 filing deadline, defendants moved to dismiss the appeal. On the return date of the motion, respondent belatedly served a motion for an order granting a nunc pro tunc extension for the filing of the appellant's brief and appendix. This Court granted respondent's motion to the extent of enlarging the time to perfect to March 18, 2013 for the June 2013 term "with no further enlargements" and granted the motion to dismiss unless the appeal was perfected. Again, respondent failed to perfect the appeal, nor did he seek a further enlargement.

         In January 2013, LL filed a second complaint with the Committee alleging that respondent had not been responsive to his requests for information about his appeal. Respondent denied LL's allegations and claimed that he had made extensive revisions to the brief and appendix and successfully filed them with the Court. A year later, on January 6, 2014, 10 months after the March 18, 2013 final filing deadline expired, respondent filed a motion to reinstate LL's appeal and for leave to perfect an untimely appeal. Defendants cross moved to dismiss the appeal with prejudice. By order of March 25, 2014, this Court denied respondent's motion (which was deemed a motion to enlarge the time to perfect the appeal) and granted defendants' cross motion and dismissed LL's appeal.

         According to LL, after respondent was admonished in 2011 for neglecting his case at the trial level, respondent's responsiveness to his telephone calls improved for a time, but after respondent filed the notice of appeal in September 2011, there were long periods in 2012 and 2013 when respondent was not responsive. After he filed his second complaint against respondent in January 2013, LL went to the court and ...

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