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

211 A.D.3d 161

178 N.Y.S.3d 63

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,

v.Aaron D. Frishberg, (OCA Atty. Reg. No. 2131894), Respondent.

Motion No. 2022-03770

Case No. 2022–02300

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

November 29, 2022

Jorge Dopico, Chief Attorney, Attorney Grievance Committee, New York (Remi E. Shea, of counsel), for petitioner.

Lennox S. Hinds, Esq., New York, for respondent.

Dianne T. Renwick, J.P., David Friedman, Jeffrey K. Oing, Anil C. Singh, Peter H. Moulton, JJ.

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 a law office within the First Department.

In May 2022, the Attorney Grievance Committee (Committee) filed a notice of petition and petition of charges pursuant to Judiciary Law § 90(2) and Rules for Attorney Disciplinary Matters ( 22 NYCRR) § 1240.8, seeking an order directing that respondent be disciplined for neglect of a legal matter, failure to provide competent representation, failure to act with reasonable diligence and promptness, and failure to properly communicate with his client, all in connection with his mishandling of a client's personal injury action.

The parties now jointly move under 22 NYCRR 1240.8(a)(5)(1) for discipline by consent and request the imposition of a six-month suspension, and supervision by the Lawyer Assistance Program (LAP) for a period of one year and until such further order of this Court. The Committee and respondent agree on the stipulated facts, including the misconduct itself and factors in aggravation and mitigation, and on the discipline. The following factual specifications are not in dispute:

A client retained respondent to represent him in a personal injury action stemming from a motor vehicle accident that occurred in North Carolina on November 16, 2015. The victim suffered serious physical injury that required hospitalization and surgery. Respondent agreed to represent the victim on a contingency fee basis, but respondent did not enter into a written retainer agreement, nor provided a letter of engagement to his client. On November 13, 2017, respondent filed the personal injury action in Wake County, Superior Court of North Carolina. In North Carolina, personal injury claims based upon negligent driving must be brought within three years of the date the injury occurred ( N.C.G.S. § 1–52(16) ).

Seven months later, on June 28, 2018, this Court suspended respondent for a period of six months, effective July 30, 2018, for neglecting to perfect an appeal in an unrelated civil matter and failure to communicate with the client about the status of the case. During respondent's suspension, a Washington State attorney represented the plaintiff in the North Carolina personal injury action. Meanwhile, respondent was reinstated in New York on June 20, 2019, and at some point thereafter respondent resumed his representation of his client in the North Carolina personal injury action.

On September 10, 2019, the North Carolina personal injury action was involuntarily dismissed without prejudice due to plaintiff's failure to comply with discovery requests. Under North Carolina law, the plaintiff would have one year from the date of the dismissal without prejudice to refile the complaint ( N.C.R.C.P. Rule 41 [b]). In order to avoid a dismissal with prejudice for untimely filing, the plaintiff had to file a new complaint by September 10, 2020.

Respondent did not file a new personal injury action until October 13, 2020, approximately one month after the expiration of the North Carolina statute of limitations. On January 31, 2021, due to the untimely filing, the new personal injury action was dismissed with prejudice, as provided by N.C.G.S. § 1–15 and N.C.R.C.P. Rule 41(b).

After the dismissal, respondent did not notify his client in writing of the outcome of the matter and did not inform him of his right to consult independent counsel with respect to any other causes of action available to him as a result of respondent's untimely filing.

At his December 2021 deposition, respondent testified that he filed the complaint late because he was unable to secure local counsel in North Carolina who would agree to sponsor his pro hac vice application until shortly before he filed the untimely complaint. It did not occur to respondent that he could have filed a pro se complaint on behalf of his client in order to toll the statute of limitations while he continued his search for local counsel.

Respondent admits that his actions, as set forth above, violated five of the charges alleged in the petition of charges:

• By failing to file the complaint within the applicable North Carolina statute of limitations, respondent failed to act with reasonable diligence and promptness in representing a client and neglected a legal matter entrusted to him in violation of Rules of Professional Conduct ( 22 NYCRR 1200.0 ) rules 1.3(a) and 1.3(b).

• By failing to provide a written retainer agreement stating the method by which a contingency fee is to be determined, including litigation and other expenses to be deducted from the recovery and whether such expenses are to be deducted before or after the contingent fee is calculated, respondent violated rule 1.5(c).

• Upon conclusion of a contingent fee matter, respondent failed to provide the client with a writing stating the outcome of the matter in violation of rule 1.5(c).

• Upon termination of representation of his client, respondent failed to take steps, to the extent reasonably

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