Reporter
105 A.D.3d 124 *; 963 N.Y.S.2d 41 **; 2013 N.Y. App. Div. LEXIS 2141 ***; 2013 NY Slip Op 2207 ****
[****1] In the Matter of Stephen A. Brusch (Admitted as Stephen Anthony Brusch), a Suspended Attorney, Respondent. Departmental Disciplinary Committee for the First Judicial Department, Petitioner.
Prior History
Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department. Respondent was admitted to the bar on May 23, 1983 at a term of the Appellate Division of the Supreme Court in the First Judicial Department as Stephen Anthony Brusch.
V.I. Bar v Brusch, 49 VI 409, 2008 V.I. Supreme LEXIS 11 (2008)
Core Terms
grievance, disbarment
Case Summary
Procedural Posture
Petitioner disciplinary committee moved for an order, pursuant to Judiciary Law § 90(2) and 22 NYCRR 603.3, disbarring respondent lawyer from the practice of law and striking his name from the roll of attorneys and counselors-at-law predicated on similar discipline imposed by the Supreme Court of the Virgin Islands, or, alternatively, sanctioning the lawyer as the court deemed appropriate.
Overview
The case involved two separate instances where respondent misappropriated client funds. In the first case, the lawyer failed to refund the unused portion of a retainer after the client hired new counsel. In the second case, the lawyer failed to remit all of the funds due to a client from a settlement. The Supreme Court of the Virgin Islands disbarred the lawyer, and this order of disbarment was the basis of the instant motion for reciprocal discipline. The court found that, since the lawyer had not appeared, he had not asserted any of the defenses to reciprocal discipline enumerated at 22 NYCRR 603.3(c), and these defenses were not available. The panel’s and court’s findings in the Virgin Islands proceeding were amply supported by the documentary evidence and the lawyer’s admissions that he committed the ethical violations charged in the grievances. Further, the Virgin Islands disbarment was based on provisions which had corresponding provisions in New York, specifically former N.Y. Code Prof. Resp. DR 9-102 (22 NYCRR 1200.46), former N.Y. Code Prof. Resp. DR 2-110(A)(3) (22 NYCRR 1200.15), and former N.Y. Code Prof. Resp. DR 1- 102(A) (22 NYCRR 1200.3), all now 22 NYCRR 1200.0
Outcome
The petition was granted and the lawyer was disbarred.
LexisNexis® Headnotes
HN1[ ] Legal Ethics, Client Funds
Model Rules 1.4(a)(3), (4), 1.15(d), 1.16(d), 8.1(b), have corresponding provisions under New York’s former Code of Professional Responsibility. Former N.Y. Code Prof. Resp. DR 9-102 (22 NYCRR 1200.46), now 22 NYCRR 1200.0; former N.Y. Code Prof. Resp. DR 2- 110(A)(3) (22 NYCRR 1200.15), now 22 NYCRR 1200.0; former N.Y. Code Prof. Resp. DR 1-102(A) (22 NYCRR 1200.3), now 22 NYCRR 1200.0.
HN2[ ] Legal Ethics, Sanctions
As a general rule in reciprocal disciplinary matters, the Supreme Court of New York, Appellate Division, First Department, gives significant weight to the sanction imposed by the jurisdiction in which the charges were initially brought Only in rare instances will the court depart from its general rule.
Headnotes/Summary
Headnotes
Attorney and Client — Disciplinary Proceedings
Since respondent did not appear and did not assert any of the defenses to reciprocal discipline enumerated at 22 NYCRR 603.3 (c), he was disbarred pursuant to Judiciary Law § 90 (2) and the reciprocal disciplinary provisions of 22 NYCRR 603.3 based upon his disbarment in the United States Virgin Islands, which was imposed upon a finding that he intentionally converted client funds.
Counsel: [***1] Jorge Dopico, Chief Counsel, Departmental Disciplinary Committee, New York City (Kaylin L. Whittingham of counsel), for petitioner.
No appearance for respondent.
Judges: Rolando T. Acosta, Justice Presiding, Dianne T. Renwick, Leland G. DeGrasse, Helen E. Freedman, Rosalyn H. Richter, Justices. All concur.
Opinion
[*125] [**41] [****2] Per Curiam.
Respondent Stephen A. Brusch was admitted to the practice of law in the State of New York by the First Judicial Department on May 23, 1983 under the name Stephen Anthony Brusch. Respondent’s last business address registered with the Office of Court Administration was in the United States Virgin Islands.
By petition dated June 1, 2012, the Departmental Disciplinary Committee moved for an order, pursuant to Judiciary Law § 90 (2) and Rules of the Appellate Division, First Department (22 NYCRR) § 603.3, disbarring [***2] respondent from the practice of law and striking his name from the roll of attorneys and counselors-at-law predicated upon similar discipline imposed by the Supreme Court of the Virgin Islands (VI Sup Ct BA Nos. 2007/64; 2007/65, 49 VI 409 [Mar. 3, 2008]) or, alternatively, [**42] sanctioning respondent as this Court deems appropriate. Respondent has not appeared in this proceeding.
This case involves two separate instances where respondent misappropriated client funds. In the first incident, Julio Colon, Jr. paid respondent a retainer of $10,000 in 2002 to handle certain probate and property matters. In November 2003, Colon informed respondent that he had retained other counsel and requested an immediate refund of the unused portion of his retainer. Respondent did not respond to Colon’s letter, nor to the repeated requests of Colon’s new counsel for a refund of the unused retainer.
In February 2004, Colon filed a grievance with the Virgin Islands Bar Association’s Ethics and Grievance Committee (EGC), which notified respondent of the Colon grievance, advised him that an adjudicatory panel had been appointed to investigate the matter, and requested that respondent submit a response. Respondent, however, failed to do so. He also failed [***3] to appear at a September 2006 hearing even though he was given notice that if he failed to appear, the panel would adjudicate the merits of the grievance and impose sanctions on a default basis. He was deemed to have admitted all factual allegations and waived his right to object to the imposition of sanctions.
Following the hearing, the panel issued a decision in which it concluded that respondent had violated Model Rules of Professional Conduct rules 1.4 (a) (4) (requiring prompt response to [*126] reasonable requests for information); 1.5 (a), (b) (rules governing fee agreements with clients); and 1.16 (d) (attorney’s obligations upon termination of representation, including the return of any unearned fee). As to sanction, the panel found various aggravating factors and recommended respondent be disbarred.
The second matter involved Fitzgerald Morris, a blind man who retained respondent to represent him in a lawsuit. Although respondent settled Morris’s action for $250,000, he retained $37,654.98 of the settlement proceeds and promised that payment would be forthcoming. Respondent, however, failed to remit the funds to Morris, who, in September 2005, filed a grievance with the EGC.
In November 2005, [***4] the EGC notified respondent of Morris’s grievance and directed him to submit a response within 30 days. As in the Colon matter, respondent failed to submit a response or to appear at the scheduled hearing even though the panel advised him that, if he failed to appear, the panel would nonetheless review the merits of the grievance and, if warranted, impose sanctions.
The hearing was held the same day as the Colon grievance and adjudicated by the same EGC panel. The panel concluded that respondent violated Model Rules of Professional Conduct rules 1.4 (a) (4) (requiring [****3] prompt response to reasonable requests for information); 1.15 (d) (duty to safeguard client property); and 8.5 (b) (duty to comply with demands from designated disciplinary authorities). As to sanction, the panel found aggravating factors and recommended respondent be disbarred.
Based on the panel’s decisions, the EGC petitioned the Supreme Court of the Virgin Islands for an order disbarring respondent. Further, based on an accompanying emergency petition, respondent was directed to show cause why he should not be immediately suspended pending a decision on the disbarment petitions. Respondent, represented by counsel, appeared before the Supreme Court [***5] at a hearing on the order to show cause, during which he admitted the allegations at issue. By order entered June 14, 2007, the Supreme Court [**43] immediately suspended respondent. The court noted that there were 11 pending grievances against respondent involving or relating to the misappropriation of client funds.
Thereafter, by order entered March 3, 2008, the Supreme Court adopted the EGC’s liability findings (with the exception of its finding that respondent violated Model Rules of Professional Conduct rule 1.5 [a], [b]) [*127] and its sanction recommendation. The court also appointed an attorney-trustee over respondent’s practice based on his failure to comply with certain provisions of the court’s June 2007 suspension order.
It is this March 3, 2008 order of disbarment that forms the basis of the instant motion for reciprocal discipline. Since respondent has not appeared he has not asserted any of the defenses to reciprocal discipline enumerated at 22 NYCRR 603.3 (c), such as lack of notice and opportunity to be heard in the foreign jurisdiction; infirmity of proof; and the misconduct at issue in the foreign jurisdiction would not constitute misconduct in New York; nor are these defenses available. Respondent received notice [***6] of the Colon and Morris grievances and the hearings thereon, and although he defaulted before the EGC panel, he appeared before the Virgin Islands court (represented by counsel) in connection with the EGC’s interim suspension and disbarment petitions. In addition, the panel’s and court’s findings are amply supported by the documentary evidence and respondent’s admissions that he committed the ethical violations charged in the grievances.
Furthermore, respondent was found to have violated
HN1[ ] Model Rules of Professional Conduct rules 1.4 (a) (3) and (4), 1.15 (d), 1.16 (d), and 8.5 (b), which have corresponding provisions under New York’s former Code of Professional Responsibility, thereby satisfying the third prong of the test (see DR 9-102 [22 NYCRR 1200.46]; DR 2-110 [A] [3] [22 NYCRR 1200.15 (a) (3)]; DR 1-102 [A] [22 NYCRR 1200.3 (a)]).
Thus, the only issue left for this Court to decide is the appropriate sanction to be imposed. HN2[ ] As a general rule in reciprocal disciplinary matters, this Court gives significant weight to the sanction imposed by the jurisdiction in which the charges were initially brought (see Matter of Kulcsar, 98 AD3d 161, 166, 947 NYS2d 67 [1st Dept 2012]; [***7] Matter of Sobolevsky, 96 AD3d 60, 62, 944 NYS2d 20 [1st Dept 2012]; Matter of Jaffe, 78 AD3d 152, 158, 908 NYS2d 623 [1st Dept 2010]). Only in rare instances will this Court depart from its general rule (see Matter of Lowell, 14 AD3d 41, 48- 49, 784 NYS2d 69 [1st Dept 2004], appeal dismissed 4 NY3d 846, 830 NE2d 320, 797 NYS2d 421 [2005], lv denied 5 NY3d 708, 836 NE2d 1151, 803 NYS2d 28 [2005]). [****4]
In addition, disbarment is in accord with this Court’s precedent because respondent was found to have, inter alia, intentionally converted client funds (see Matter of Kennedy, 99 AD3d 75, 950 NYS2d 32 [*128] [1st Dept 2012]; Matter of Johnson, 94 AD3d 157, 940 NYS2d 627 [1st Dept 2012]; Matter of Holubar, 84 AD3d 100, 923 NYS2d 53 [1st Dept 2011]; Matter of Bernstein, 41 AD3d 49, 833 NYS2d 463 [1st Dept 2007]; Matter of Schmell, 27 AD3d 24, 808 NYS2d 201 [1st Dept 2006]).
Accordingly, the petition should be granted pursuant to Judiciary Law § 90 (2) and 22 NYCRR 603.3 disbarring respondent from the practice of law and striking [**44] his name from the roll of attorneys and counselors-atlaw.
Acosta, J.P., Renwick, DeGrasse, Freedman and Richter, JJ., concur.
Respondent disbarred, and his name stricken from the roll of attorneys and counselors-at-law in the State of New York, effective the date hereof.