Attorney Grievance Comm. for the First Judicial Dep't v. Kreis (In re Kreis)
| Decision Date | 19 December 2019 |
| Docket Number | M–3787 |
| Citation | 115 N.Y.S.3d 30,180 A.D.3d 5 |
| Parties | In the MATTER OF Elizabeth S. KREIS (admitted as Elizabeth Susan Kreis), an attorney and counselor-at-law: Attorney Grievance Committee for the First Judicial Department, Petitioner, v. Elizabeth S. Kreis, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Jorge Dopico, Chief Attorney, Attorney Grievance Committee, New York (Sean A. Branveen, of counsel), for petitioner.
Respondent, pro se.
Hon. Sallie Manzanet–Daniels, Justice Presiding, Troy K. Webber, Cynthia S. Kern, Jeffrey K. OingAnil C. Singh, Justices.
IN THE MATTER OF ELIZABETH S. KREIS, AN ATTORNEY
Respondent Elizabeth Susan Kreis was admitted to the practice of law in the State of New York by the First Judicial Department on June 1, 1992. At all times relevant to this proceeding, respondent maintained a registered address in Colorado, where she is admitted to practice and resides.
By order entered November 27, 2017, effective January 2, 2018, the Supreme Court of Colorado suspended respondent from the practice of law for a period of six months, with 90 days to be served and the remainder to be stayed, upon her successful completion of an 18–month period of probation with conditions, for, inter alia, charging an excessive fee and failing to communicate with a client in a matrimonial matter .
The Attorney Grievance Committee (Committee) now seeks an order, pursuant to Judiciary Law § 90(2), the Rules for Attorney Disciplinary Matters ( 22 NYCRR) § 1240.13, and the doctrine of reciprocal discipline, suspending respondent from the practice of law for a period of six months, or, in the alternative, sanctioning respondent as this Court deems appropriate, based on her discipline in Colorado.
The facts are undisputed as respondent, represented by counsel, entered into a stipulation with the Colorado Supreme Court's Office of Attorney Regulation Counsel (OARC) in which she waived her right to a hearing, admitted to professional misconduct, and consented to the imposition of discipline.
In 2015, respondent was retained to represent the husband (client) in a divorce action. While respondent and the client orally agreed that he would pay her an initial retainer of $5,000 and thereafter she would bill him at a rate of $250 per hour, respondent failed to provide the client with a written fee agreement. In July 2015, the divorcing couple sold their house in Maui for approximately $500,000, the proceeds of which were held in respondent's attorney trust account along with revenue from the sale of other property. Prior to conclusion of the divorce action, the parties agreed to several distributions of those funds to each other to cover ongoing expenses. Out of such distribution, the client paid respondent $25,000 even though he had not yet received an invoice from her.
In August 2015, the divorce action was transferred to a different judge to conduct a permanent orders hearing which was scheduled for March 2016. Respondent believed that this particular judge was biased against her based on his rulings in litigation to which she was a party, and she told the client that she would have to withdraw as his counsel of record before the permanent orders hearing. In February 2016, respondent filed a substitution of counsel, substituting another attorney to replace her as the client's counsel of record. Even though respondent withdrew as counsel of record, she stayed on to assist with the case preparation. The client separately paid substituted counsel $20,000 to handle his case through the finalization of the court's orders subsequent to the permanent orders hearing.
While respondent and the client did not discuss whether she expected to be paid for work she completed after her withdrawal as counsel of record, they agreed she would continue assisting with exhibit and witness preparation until March 2, 2016, the date of the permanent orders hearing. Respondent ultimately charged the client for her post-withdrawal work.
On March 30, 2016, after the permanent orders hearing but before permanent orders were issued, respondent gave the client her first invoice, for a total of $128,512.50 in legal fees and $2,552 in costs. The invoice, which spanned 43 pages, did not provide sufficient detail and many entries read only "email." On April 8, 2016, the court issued permanent orders which provided that the remaining funds held in respondent's attorney trust account were to be disbursed within seven days as follows: $160,000 to the client's estranged wife and $160,485.49 to the client, plus any additional accrued interest. On April 14, 2016, respondent filed a charging lien against any marital property awarded to the client in the amount of $101,454.50. The charging lien did not state that respondent was refusing to distribute the proceeds in her attorney trust account according to the permanent orders, but the client and his counsel were aware that she was retaining the funds.
In June 2016, respondent referred the client's invoice for collection after fee mediation failed to produce a resolution. Respondent and the client ultimately attended fee arbitration to resolve their dispute.
In the stipulation between OARC and respondent, she admitted that her conduct as described above violated Colorado Rules of Professional Conduct 1.4(a)(3) (); 1.4(b) (a lawyer shall explain a matter so as to permit the client to make informed decisions regarding the representation; 1.5(a) (); 1.5(b) (); and 3.4(c) ().
On the issue of sanction, the parties cited the following aggravating factors as relevant: selfish motive; a pattern of misconduct; multiple offenses; and substantial experience in the practice of law. As to mitigation, the parties cited the following as relevant: absence of a prior disciplinary record; personal or emotional problems; full and free disclosure to disciplinary board or cooperative attitude toward proceedings; character or reputation; and remorse. Further, based on the applicable precedent, the parties agreed that "[w]here excessive fees are combined with a failure to communicate, it can often warrant suspension-level discipline."
As to the discipline imposed, respondent consented to a six-month suspension, with 90 days to be served and the remainder to be stayed upon her successful completion of an 18–month probation with conditions.
By order entered November 27, 2017, effective January 2, 2018, the Presiding Disciplinary Judge of the Supreme Court of Colorado approved the parties' stipulation and directed that respondent be disciplined in accordance therewith.
In the instant proceeding seeking reciprocal discipline pursuant to 22 NYCRR 1240.13, respondent may raise the following defenses: (1) a lack of notice or opportunity to be heard in the foreign jurisdiction constituting a deprivation of due process; (2) an infirmity of proof establishing the misconduct; or (3) that the misconduct for which the attorney was disciplined in the foreign jurisdiction does not constitute misconduct in this state.
The Committee maintains that none of the enumerated defenses to reciprocal discipline apply herein, therefore, the Committee requests that this Court impose an unconditional six-month suspension because, unlike Colorado's rules, this state's Rules for Attorney Disciplinary Matters (22 NYCRR) § 1240 et. seq. do not provide for a stayed suspension with probation ( Matter of Vohra , 303 A.D.2d 61, 63, 755 N.Y.S.2d 71 [1st Dept. 2003] ; see also Matter of Basdekis , 142 A.D.3d 280, 284, 37 N.Y.S.3d 254 [1st Dept. 2016] ; Matter of Hagendorf , 17 A.D.3d 25, 27, 791 N.Y.S.2d 412 [1st Dept. 2005] ), and such sanction is in accord with this Court's precedent.
Respondent, pro se, requests that, if reciprocal discipline is granted, then a three-month suspension nunc pro tunc "to time served in Colorado" be imposed. Respondent, who avers that she has handled approximately 3,000 family law matters over her...
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