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In re Ziankovich

Supreme Court of New York, First Department

January 16, 2020

In the Matter of Youras Ziankovich, (admitted as Youry Ziankovich), an attorney and counselor-at-law: Attorney Grievance Committee for the First Judicial Department, Petitioner, Youras Ziankovich, Respondent.

         Disciplinary proceedings instituted by the Attorney Grievance Committee for the First Judicial Department. Respondent, Youras Ziankovich, was 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 February 26, 2014.

          Jorge Dopico, Chief Attorney, Attorney Grievance Committee, New York (Denise M. Szekely, of counsel), for petitioner.

         Respondent pro se.

          Hon. Judith J. Gische, Justice Presiding, Angela M. Mazzarelli Troy K. Webber Cynthia S. Kern Peter H. Moulton, Justices.

          PER CURIAM.

         Respondent Youras Ziankovich was admitted to the practice of law in the State of New York by the Second Judicial Department on February 26, 2014, under the name Youry Ziankovich. At all times relevant to this proceeding, respondent maintained a registered address within the First Judicial Department. This Court retains continuing jurisdiction pursuant to the Rules for Attorney Disciplinary Matters 22 (NYCRR) § 1240.7(a)(2).

         The Attorney Grievance Committee (Committee) seeks an order, pursuant to the Rules of Professional Misconduct (22 NYCRR) § 1240.13 and the doctrine of reciprocal discipline, finding that the conduct underlying respondent's discipline in Colorado would constitute misconduct in New York; directing him to demonstrate why reciprocal discipline should not be imposed for the underlying misconduct; and/or suspending him for one year, or, in the alternative, imposing such sanction as this Court deems appropriate based on his discipline in Colorado. Respondent, pro se, opposes, asserts defenses to reciprocal discipline, and moves to strike the Committee's reply.

         In 2017, the Colorado Office of Attorney Regulation Counsel (OARC) filed a complaint charging respondent with seven disciplinary violations. While respondent is not admitted in Colorado, under Colorado Rules of Professional Conduct (RPC) 8.5(a), the Colorado Supreme Court has disciplinary jurisdiction over him based on his practice of immigration law within that state.

         The Presiding Disciplinary Judge (PDJ) of the Colorado Supreme Court granted the OARC partial summary judgment sustaining six of the alleged violations, and directed a hearing be held before a three-member Hearing Board (which included the PDJ) for a determination as to liability on the remaining charge and sanction. Respondent appeared pro se and testified at the hearing.

         The factual and judicial findings in this matter are as follows. On June 30, 2016, Hennadiy Zhakyavichyus and Iuliia Vyshniavska retained respondent to apply for adjustments of their respective immigration statuses, for which they paid him the full agreed upon fee of $6, 000 to handle both matters, but they discharged him on August 4 and August 9, 2016, respectively, because both of them were dissatisfied with the pace at which their matters were being handled. At the time of his August 9 termination, respondent told Zhakyavichyus that he had filed his citizenship application on August 4, however, records showed that the earliest date it could have been filed was August 9. Further, respondent, who did not keep contemporaneous time records for his work, billed the couple a total of over $5, 000 for their joint, initial two-hour meeting with him. He claimed that the fee was justified under the terms of their retainer agreements.

         The PDJ granted the OARC partial summary judgment finding that the fees respondent charged violated Colorado RPC 1.5(a) (a lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses); he failed to deposit $5, 000 of the advance fee paid to him by Zhakyavichyus into an attorney trust account in violation of Colorado RPC 1.5(f) (advances of unearned fees are the property of the client and shall be deposited in the lawyer's trust account) and Colorado RPC 1.15(a) (a lawyer shall hold property of clients or third persons that is in the lawyer's possession in connection with a representation separate from the lawyer's own property); by including a nonrefundable "case evaluation fee" of $1, 000 in his retainer agreements he violated Colorado RPC 1.5(g) (nonrefundable fees and nonrefundable retainers are prohibited [and] any agreement that purports to restrict a client's right to terminate the representation, or that unreasonably restricts a client's right to obtain a refund of unearned or unreasonable fees, is prohibited); upon termination of his services by the clients, he failed to promptly return unearned fees and thereby failed to take steps reasonably practicable to protect the clients' interests in violation of Col. RPC 1.16(d); and by misrepresenting the filing date of Zhakyavichyus's application he engaged in dishonest conduct in violation of Colorado RPC 8.4(c).

         However, the Hearing Board did not sustain the charge alleging that respondent violated Colorado RPC 1.4(b) (a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation), finding that the OARC had not met its burden of proof with respect to such.

         The Hearing Board did not find that "the substance of Respondent's representation caused particular harm to his clients" but, nevertheless, found that "he caused both actual and potential injury [to them] in relation to his improper charging of fees and his dishonesty" (People v Ziankovich, 433 P.3d 640, 653 [Colo. O.P.D.J. 2018]). In particular, Zhakyavichyus was harmed when respondent failed to tell him the truth about the mailing date of his application; Vyshniavska "saw little benefit from the fees she paid [him]" and was disheartened about lawyers based on the experience; and her case took longer to resolve as a result of respondent's misconduct (id.). Also, it concluded that he caused both clients potential harm by not placing their fees in trust, and his misconduct harmed the public and legal profession by diminishing the public's trust in lawyers (id.).

         The Board found further that respondent acted recklessly with regard to his dishonesty toward Zhakyavichyus but knowingly engaged in his fee related misconduct, therefore, under sections 4.12, 4.62, and 7.2 of the ABA Standards for Imposing Lawyer Sanctions (ABA Standards), suspension was the presumptive sanction. Additionally, the Board majority found there were aggravating factors, namely, dishonest or selfish motive, multiple offenses, bad faith obstruction of disciplinary proceeding, refusal to acknowledge wrongful nature of conduct, vulnerability of victim, and indifference to ...

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