Attorney Grievance Comm. for the First Judicial Dep't v. Espinoza (In re Espinoza)

200 A.D.3d 21

155 N.Y.S.3d 16

In the MATTER OF Rafael J. ESPINOZA, (Admitted as Rafael Juan Espinoza), an attorney and counselor-at law:

Attorney Grievance Committee for the First Judicial Department, Petitioner,

v.Rafael J. Espinoza, (OCA Atty Reg. No. 5088901), Respondent.

Motion No. 2021-03076

Case No. 2021-03300

Supreme Court, Appellate Division, First Department, New York.

Entered October 28, 2021

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

Respondent, pro se.

Dianne T. Renwick, J.P., Judith J. Gische, Barbara R. Kapnick, Peter H. Moulton, Bahaati E. Pitt, JJ.

Per Curiam

Respondent Rafael J. Espinoza was admitted to the practice of law in the State of New York by the Second Judicial Department on January 16, 2013, under the name Rafael Juan Espinoza. At all times relevant to this proceeding, respondent maintained a law office within the First Judicial Department.

The Attorney Grievance Committee (Committee) seeks an order pursuant to the Rules for Attorney Disciplinary Matters ( 22 NYCRR) § 1240.9(a)(3) immediately suspending respondent from the practice of law until further order of this Court based upon his failure to comply with lawful demands of the Committee in its investigation. Respondent, pro se, has not submitted a response to this motion.

Between October 2019 and July 2020, the Committee received five complaints against respondent alleging, inter alia, neglect, failure to communicate, deceit, misrepresentation and fraud. Between November 22, 2019 and August 5, 2020, a Committee Staff investigator sent respondent numerous letters and left him several telephone messages in an attempt to obtain answers to the complaints.

On November 2, 2020, respondent submitted a response to one complaint filed by an immigration client. On January 4, 2021, this Court issued a judicial subpoena directing respondent's appearance at an examination under oath (EUO) on January 27, 2021. On January 27, respondent, pro se, was examined under oath remotely (due to the COVID-19 pandemic) during which he testified from information and documents that were not previously provided to the Committee. For example, with respect to the first complaint filed against him, respondent testified that he stopped working on the client's asylum petition after he received a "secret letter" from the client's sister, alleging that the petition would be based on fraud, and he also claimed to have an audio message contradicting the complainant's allegation that he improperly charged her credit card $2,250 instead of the $1,000 she had authorized. With respect to another complaint, which alleged respondent failed to appear in court resulting in a deportation order for the client and his son, respondent claimed he didn't appear because he never received the file from the former attorney. When respondent read from a purported letter that he sent to the former attorney about his retention and a notice of appearance, Committee Staff directed respondent to produce a copy of the letter thereafter. Respondent did not comply.

With regard to another complaint alleging neglect and failure to communicate and to perform any work on the matter, respondent testified that the client decided not to proceed with the case and that he still had in the client file a money order she had given him for payment of filing fees which he promised to return "right away." Staff Counsel directed him to provide, inter alia, a copy of the cover letter that he sent with the return of the money order. At the conclusion of the EUO, respondent was directed to provide, among other things, the above referenced documents and information by February 10, 2021. Respondent did not comply.

On February 15, 2021, respondent provided a written answer to the remaining four complaints. Respondent did not, however, provide the specific supplemental information he was directed to submit during his EUO several weeks earlier, on January 27, 2021. Consequently, by letter dated March 23, 2021, Staff Counsel listed all of the documents and information that respondent was previously asked to submit, he was provided with a copy of the EUO transcript, and he was given until April 12, 2021, to produce the outstanding material. Again, respondent failed to comply. On April 22, 2021, the Committee mailed and emailed another letter giving respondent until April 30, 2021 to produce the outstanding documents and information, but he did not respond.

On May 19, 2021, respondent emailed Staff Counsel acknowledging receipt of the Committee's March 23rd letter explaining that he had been out of the country between April 8 and April 23, and upon his return, he fell ill. Accordingly, the Committee agreed to respondent's request for an extension until the end of the week to...