Appellate Division: Second Judicial Department

M251751

E/afa

ALAN D. SCHEINKMAN, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

MARK C. DILLON

JOSEPH J. MALTESE, JJ.

2018-01354 In the Matter of Michael R. Varble, an attorney and counselor-at-law. Grievance Committee for the Ninth Judicial District, petitioner; Michael R. Varble, respondent. (Attorney Registration No. 2799773)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Ninth Judicial District (1) to immediately suspend the respondent from the practice of law, pursuant to 22 NYCRR 1240.9(a)(3) and (5), upon a finding that he is guilty of professional misconduct immediately threatening the public interest based upon his failure to comply with the lawful demands of the Grievance Committee and other uncontroverted evidence of professional misconduct, (2) to provide notice to the respondent, pursuant to 22 NYCRR 1240.9(b), that he may be disbarred by the Court without further notice in the event that he fails to respond to or appear for further investigatory or disciplinary proceedings within six months, and (3) to refer the issues raised to a Special Referee, to hear and report. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the First Judicial Department on January 13, 1997.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the motion is granted; and it is further,

ORDERED that pursuant to 22 NYCRR 1240.9(a)(3) and (5), the respondent, Michael R. Varble, is immediately suspended from the practice of law in the State of New York, pending further order of the Court; and it is further,

ORDERED that the respondent, Michael R. Varble, shall promptly comply with this Court's rules governing the conduct of disbarred or suspended attorneys (see 22 NYCRR 1240.15); and it is further,

ORDERED that pursuant to Judiciary Law § 90, during the period of suspension and until further order of this Court, the respondent, Michael R. Varble, is commanded to desist and refrain from (1) practicing law in any form, either as principal or agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law; and it is further,

ORDERED that if the respondent, Michael R. Varble, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency and the respondent shall certify to the same in his affidavit of compliance pursuant to 22 NYCRR 1240.15(f); and it is further,

ORDERED that the issues raised are referred to the Honorable Arthur J. Cooperman, 110-11 Queens Blvd, Apt 10H, Forest Hills, NY 11375, as Special Referee, to hear and report, with the hearing to be completed within 60 days of the date of this decision and order on motion, or as soon thereafter as practicable, and to submit a report, which contains his findings on the issues and charges, within 60 days after the conclusion of the hearing or the submission of post-hearing memoranda; and it is further,

ORDERED that pursuant to 22 NYCRR 1240.9(b), in the event the respondent, Michael R. Varble, fails to respond to or appear for further investigatory or disciplinary proceedings within six months of the date of this decision and order on motion, he may be disbarred by the Court without further notice.

We find, prima facie, that the respondent is guilty of professional misconduct immediately threatening the public interest based on his failure to comply with the lawful demands of the Grievance Committee for the Ninth Judicial District, and the uncontroverted evidence that he failed to respond to client inquires, and failed, upon being discharged by multiple clients, to refund any part of a fee paid in advance that had not been earned.

Beginning in late July 2017 the Grievance Committee for the Ninth Judicial District began to receive complaints of professional misconduct against the respondent, as follows:

Complaint of Summer R. Adamo

The Grievance Committee received a complaint from Summer R. Adamo on July 17, 2017, which alleged that she retained the respondent's firm on February 7, 2017, to represent her, and paid a retainer fee in the sum of $3,500. About one week later, by email, Adamo told the respondent to cease working on her legal matter, and requested a refund of the unearned portion of her retainer totaling $3,422.50. Notwithstanding Adamo's additional requests, the respondent has failed to refund her retainer.

Complaint of Frank Donovan

The Grievance Committee received a complaint from Frank Donovan on November 30, 2017, alleging that he retained the respondent's firm in October 2016 to represent him, and paid a retainer fee in the sum of $2,500. On March 4, 2017, Donovan discharged the respondent and requested a refund of the remaining retainer totaling $2,381.35. Donovan made telephone calls on March 30, 2017, and April 17, 2017, and sent more than 20 emails but he never received the requested refund.

Complaint of Jay Schwartz

The Grievance Committee received a complaint from Jay Schwartz on August 9, 2017, alleging that he retained the respondent's firm in or about June 2013 to represent him in a personal injury action against the City of Yonkers. Schwartz alleges that the respondent failed to reschedule a court appearance date and closed his case without informing him, after Schwartz rejected a $7,500 settlement offer in March 2017. The respondent represented to the Supreme Court that the case was settled in March 2017.

Complaint of Erica Tagliaferri and Gary Tagliaferri

The Grievance Committee received separate complaints from Erica Tagliaferri on July 31, 2017, and from Gary Tagliaferri on August 9, 2017. As alleged in the complaints, Erica Tagliaferri retained the respondent's firm to represent her in a divorce proceeding against Gary Tagliaferri and Gary Tagliaferri sent a $4,000 check for child support arrears, payable to Erica Tagliaferri, to the respondent's office in late July 2017. The respondent's firm attempted to deposit this check into the respondent's attorney trust account, but the check was dishonored. Based upon the foregoing, the Tagliaferris each submitted a complaint, similarly alleging that the respondent attempted to deposit the child support arrears check into his attorney trust account.

Complaint of Elise Scivolette

The Grievance Committee received a complaint from Elise Scivolette on August

25, 2017, regarding the respondent's handling of her personal injury action. On or about January 18, 2017, Scivolette executed a consent to change attorney in favor of the respondent and a contingency agreement retaining the respondent. Scivolette alleged that the respondent thereafter failed to respond to her inquiries. By letter dated June 30, 2017, the respondent notified Scivolette that he had a conflict of interest, and asked her to sign a new consent to change attorney form and hire new counsel to avoid unnecessary motion practice and costs. Notwithstanding her request for an explanation of the conflict, Scivolette never received a response from the respondent. Scivolette also alleged that the file she received from the respondent was incomplete.

Complaint of Michelle Kuklinski and Joseph Kuklinski

The Grievance Committee received a complaint from Michelle Kuklinski and Joseph Kuklinski on November 27, 2017, which alleged that they retained the respondent's firm on June 7, 2017, and paid a retainer fee in the sum of $3,500. The Kuklinskis discharged the respondent's firm on July 26, 2017, and the respondent's billing statement reflected a retainer balance of $3,387.50, as of August 3, 2017. Nevertheless, the Kuklinskis have not received a refund despite more than 30 telephone calls to the respondent.

Complaint of Eric Ferine

The Grievance Committee received a complaint from Eric Ferine on September 20, 2017, which alleged that he retained the respondent's firm on December 8, 2016, to represent him, and paid a retainer fee of $5,000. That night, Ferine changed his mind about the litigation and informed the respondent via email. On January 18, 2017, Mr. Ferine was told that he would receive a refund within 30 days of the "final bill," but the respondent has failed to provide the requested refund.

Complaint of Vincent Abate

The Grievance Committee received a complaint from Vincent Abate on September 13, 2017, alleging that he retained the respondent's firm on or about March 8, 2017, to represent him, and paid a retainer fee in the sum of $7,500. After Abate grew dissatisfied with the quality of the respondent's representation and his bill, on or about August 15, 2017, he discharged the respondent, and requested a refund of the $3,687.26 balance, as well as his file. Abate has not received the requested refund or his file.

Complaint of Arthur J. Mucci

The Grievance Committee received a complaint from Arthur J. Mucci on October 3, 2017, alleging that he retained the respondent's firm on April 28, 2017, to represent him, and paid a retainer fee in the sum of $2,500. By email dated August 7, 2017, Mucci directed the respondent's associate to cease working on his legal matter, and requested a refund of the unused retainer. The respondent has failed to provide Mucci with the requested refund.

Complaint of Louis G. Antonelli, Jr.

The Grievance Committee received a complaint from Louis G. Antonelli, Jr., on October 16, 2017, which alleged that he retained the respondent's firm on February 27, 2017, to represent him, and paid a retainer fee in the sum of $1,500. Antonelli grew dissatisfied with the respondent's representation based on his failure to return telephone calls and emails. By certified letter dated August 7, 2017, Antonelli discharged the respondent's firm and requested a refund of his $1,500 retainer. Antonelli has not received the requested refund.

Complaint of Danielle Cebron

The Grievance Committee received a complaint from Danielle Cebron on October 13, 2017, which alleged that she retained the respondent's firm on April 20, 2017, to represent her, and paid a retainer fee in the sum of $3,500. Cebron grew dissatisfied with the quality of the respondent's representation, including his failure to respond to telephone calls and emails. He also failed to appear at a court appearance, which resulted in Cebron's case being dismissed.

Complaint of Tina Garbarino

The Grievance Committee received a complaint from Tina Garbarino on October 19, 2017, which alleged that she retained the respondent's firm on May 2, 2017, to represent her, and paid a retainer fee in the sum of $2,000 or $2,500. According to Garbarino, no progress was made and the respondent failed to respond to her inquiries. By text message on September 1, 2017, Garbarino requested a refund of the retainer. Garbarino has not received the requested refund.

Complaint of Paul Elwood Hunter

The Grievance Committee received a complaint from Paul Elwood Hunter on October 30, 2017, which alleged that he retained the respondent's firm on December 21, 2016, to represent him, and paid a retainer fee in the sum of $5,000. Hunter alleges that his matter was passed to an associate, without progress. After becoming dissatisfied with the quality of the respondent's representation, Hunter retained new counsel. Hunter disputes the respondent's bill.

Complaint of Brian J. McCarthy

The Grievance Committee received a complaint from Brian J. McCarthy on November 9, 2017, which alleged that he retained the respondent's firm on June 5, 2017, to represent him, and paid a retainer fee in the sum of $2,500. A few days before McCarthy's first court appearance, on or about August 16, 2017, the respondent terminated the associate who had been working on his case. McCarthy discharged the respondent and retained the respondent's former associate to represent him. Notwithstanding numerous inquires and telephone calls to the respondent, McCarthy has not received an accounting and refund.

Complaint of Aaron J. Wilkins

The Grievance Committee received a complaint from Aaron J. Wilkins on November 9, 2017, which alleged that he retained the respondent's firm on October 14, 2016, to represent him, and paid a retainer fee in the sum of $2,500. Wilkins has been unable to collect a refund of the unused portion of the retainer. Wilkins received a billing statement dated August 3, 2017, reflecting a remaining retainer balance of $2,364.53.

Complaint of Deana Perillo

The Grievance Committee received a complaint from Deana Perillo on November 13, 2017. Perillo paid the respondent a retainer in the sum of $2,500. After the respondent failed to return her telephone calls, Perillo discharged the respondent on September 6, 2017. Although the respondent's billing statement dated August 3, 2017, reflected a remaining retainer balance of $1,546.58, Perillo has not received a refund from the respondent.

Complaint of Kristen A. Femenella

The Grievance Committee received a complaint from Kristen A. Femenella on November 15, 2017, which alleged that she retained the respondent's firm on May 27, 2016, to represent her, and paid a retainer fee in the sum of $5,000. Femenella alleges that she went to two court appearances, but no attorney from the respondent's firm appeared. Femenella became dissatisfied with the respondent's representation, and signed a consent to change attorney form in favor of one of the respondent's former associates. Femenella alleges that the respondent delayed returning the form.

Complaint of Gina Ayala

The Grievance Committee received a complaint from Gina Ayala on November 27, 2017, which alleged that she retained the respondent's firm on May 15, 2017, to represent her, and paid a $5,000 retainer fee. Within three months, Ayala grew dissatisfied with the respondent's representation, and discharged him in August 2017. Although the respondent's billing statement dated October 27, 2017, reflected a remaining retainer balance of $4,587.50, he has failed to refund those funds to Ayala.

Respondent's Failure to Comply with Lawful Demands of the Grievance Committee

After each of the foregoing complaints were received by the Grievance Committee for the Ninth Judicial District, the Grievance Committee sent the respondent a letter notifying him that an investigation had been opened based upon the enclosed complaints, and asking him to submit a written answer within 10 days of receipt thereof. When the respondent failed to submit an answer to each complaint, additional letters were sent by the Grievance Committee to the respondent reminding him of his obligation to submit the outstanding written answers, and alerting him of the potential consequence if he failed to do so. The respondent failed to submit the requested answers to each of the complaints. The Grievance Committee obtained and served the respondent with a judicial subpoena and a judicial subpoena duces tecum requiring his appearance for an examination under oath (hereinafter EUO) on October 25, 2017, and directing him to produce certain client case files and documents.

Although the respondent appeared on October 25, 2017, for the EUO, he failed to bring the subpoenaed client case files and was unable to fully recall all of the complaining clients' legal matters. The respondent was again reminded that he was required to submit the outstanding answers on the pending complaints.

By affirmation in opposition dated March 30, 2018, filed almost one month after the original return date of the motion, the respondent details, among other things, certain family circumstances which occurred in March 2018. He further claims that he suffered a financial hardship forcing him to file for Chapter 7 bankruptcy, personally and for Michael R. Varble & Associates, P.C. While the bankruptcy proceedings are pending, the respondent argues that the attorney disciplinary proceedings are stayed by virtue of the automatic stay in the bankruptcy proceeding. However, the respondent's argument in this regard is without merit, as this proceeding is exempt, pursuant to 11 USC § 362(B)(4) from the bankruptcy stay (see In re Friedman & Shapiro, P.C., 185 BR 143). Annexed to the respondent's affirmation in opposition is a copy of a letter dated March 29, 2018, which is addressed to all 19 complaints. Therein, the respondent describes personal and professional stresses in his life, and claims that they have impacted his ability to handle client matters, return client refunds, and respond to the Grievance Committee.

We find that the Grievance Committee has sufficiently demonstrated that the respondent poses an immediate threat to the public interest by his continued pattern and practice of obstructing the Grievance Committee's investigation, his failure to respond to client inquires, and his failure to promptly refund any part of fees paid in advance that had not been earned as was required by rule 1.16(e) of the Rules of Professional Conduct (22 NYCRR 1200.0).

Based on the foregoing, the motion is granted, the respondent is immediately suspended from the practice of law pursuant to 22 NYCRR 1240.9(a)(3) and (5), pending further order of this Court, the respondent is notified pursuant to 22 NYCRR 1240.9(b) that in the event he hereafter fails to respond to or appear for further investigatory or disciplinary proceedings within six months of the date of this decision and order on motion, the Court may, without further notice, disbar him, and the matter is referred to the Special Referee, to hear and report.

SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and MALTESE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court