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

• Decision Date: 16 January 2020
• Docket Number: M–7531,M–3666
• Parties: In the MATTER OF Youras ZIANKOVICH, (admitted as Youry Ziankovich), an attorney and counselor-at-law: Attorney Grievance Committee for the First Judicial Department, Petitioner, v. Youras Ziankovich, Respondent.
• Court: New York Supreme Court — Appellate Division

180 A.D.3d 140

118 N.Y.S.3d 30

In the MATTER OF Youras ZIANKOVICH, (admitted as Youry Ziankovich), an attorney and counselor-at-law:Attorney Grievance Committee for the First Judicial Department, Petitioner,

v.Youras Ziankovich, Respondent.

M–3666

M–7531

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

January 16, 2020

Jorge Dopico, Chief Attorney, Attorney Grievance Committee, New York (Denise M. Szekely, of counsel), for petitioner.

Respondent pro se.

Hon. Judith J. Gische, Justice Presiding, Angela M. Mazzarelli, Troy K. Webber, Cynthia S. Kern, Peter H. Moulton, Justices.

PER CURIAM

Respondent Youras Ziankovich was admitted to the practice of law in the State of New York by the Second Judicial Department on February 26, 2014, under the name Youry Ziankovich. At all times relevant to this proceeding, respondent maintained a registered address within the First Judicial Department. This Court retains continuing jurisdiction pursuant to the Rules for Attorney Disciplinary Matters 22 (N.Y.CRR) § 1240.7(a)(2).

The Attorney Grievance Committee (Committee) seeks an order, pursuant to the Rules of Professional Misconduct ( 22 NYCRR) § 1240.13 and the doctrine of reciprocal discipline, finding that the conduct underlying respondent's discipline in Colorado would constitute misconduct in New York; directing him to demonstrate why reciprocal discipline should not be imposed for the underlying misconduct; and/or suspending him for one year, or, in the alternative, imposing such sanction as this Court deems appropriate based on his discipline in Colorado. Respondent, pro se, opposes, asserts defenses to reciprocal discipline, and moves to strike the Committee's reply.

In 2017, the Colorado Office of Attorney Regulation Counsel (OARC) filed a complaint charging respondent with seven disciplinary violations. While respondent is not admitted in Colorado, under Colorado Rules of Professional Conduct (RPC) 8.5(a), the Colorado Supreme Court has disciplinary jurisdiction over him based on his practice of immigration law within that state.

The Presiding Disciplinary Judge (PDJ) of the Colorado Supreme Court granted the OARC partial summary judgment sustaining six of the alleged violations, and directed a hearing be held before a three-member Hearing Board (which included the PDJ) for a determination as to liability on the remaining charge and sanction. Respondent appeared pro se and testified at the hearing.

The factual and judicial findings in this matter are as follows. On June 30, 2016, Hennadiy Zhakyavichyus and Iuliia Vyshniavska retained respondent to apply for adjustments of their respective immigration statuses, for which they paid him the full agreed upon fee of $6,000 to handle both matters, but they discharged him on August 4 and August 9, 2016, respectively, because both of them were dissatisfied with the pace at which their matters were being handled. At the time of his August 9 termination, respondent told Zhakyavichyus that he had filed his citizenship application on August 4, however, records showed that the earliest date it could have been filed was August 9. Further, respondent, who did not keep contemporaneous time records for his work, billed the couple a total of over $5,000 for their joint, initial two-hour meeting with him. He claimed that the fee was justified under the terms of their retainer agreements.

The PDJ granted the OARC partial summary judgment finding that the fees respondent charged violated Colorado RPC 1.5(a) (a lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses); he failed to deposit $5,000 of the advance fee paid to him by Zhakyavichyus into an attorney trust account in violation of Colorado RPC 1.5(f) (advances of unearned fees are the property of the client and shall be deposited in the lawyer's trust account) and Colorado RPC 1.15(a) (a lawyer shall hold property of clients or third persons that is in the lawyer's possession in connection with a representation separate from the lawyer's own property); by including a nonrefundable "case evaluation fee" of $1,000 in his retainer agreements he violated Colorado RPC 1.5(g) (nonrefundable fees and nonrefundable retainers are prohibited [and] any agreement that purports to restrict a client's right to terminate the representation, or that unreasonably restricts a client's right to obtain a refund of unearned or unreasonable fees, is prohibited); upon termination of his services by the clients, he failed to promptly return unearned fees and thereby failed to take steps reasonably practicable to protect the clients' interests in violation of Col. RPC 1.16(d); and by misrepresenting the filing date of Zhakyavichyus's application he engaged in dishonest conduct in violation of Colorado RPC 8.4(c).

However, the Hearing Board did not sustain the charge alleging that respondent violated Colorado RPC 1.4(b) (a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation), finding that the OARC had not met its burden of proof with respect to such.

The Hearing Board did not find that "the substance of Respondent's representation caused particular harm to his clients" but, nevertheless, found that "he caused both actual and potential injury [to them] in relation to his improper charging of fees and his dishonesty" ( People v. Ziankovich, 433 P.3d 640, 653 [Colo. O.P.D.J.2018] ). In particular, Zhakyavichyus was harmed when respondent failed to tell him the truth about the mailing date of his application; Vyshniavska "saw little benefit from the fees she paid [him]" and was disheartened about lawyers based on the experience; and her case took longer to resolve as a result of respondent's misconduct ( id. ). Also, it concluded that he caused both clients potential harm by not placing their fees in trust, and his misconduct harmed the public and legal profession by diminishing the public's trust in lawyers ( id. ).

The Board found further that respondent acted recklessly with regard to his dishonesty toward Zhakyavichyus but knowingly engaged in his fee related misconduct, therefore, under sections 4.12, 4.62, and 7.2 of the ABA Standards for Imposing Lawyer Sanctions (ABA Standards), suspension was the presumptive sanction. Additionally, the Board majority found there were aggravating factors, namely, dishonest or selfish motive, multiple offenses, bad faith obstruction of disciplinary proceeding, refusal to acknowledge wrongful nature of conduct, vulnerability of victim, and indifference to making restitution. Nevertheless, the majority found that four of the aforementioned factors were entitled to relatively little weight (ABA Standards § 9.22).

While, the majority found mitigation, based upon respondent's lack of any prior discipline and his inexperience in the practice of law, it gave relatively little weight to his unblemished disciplinary history as he had only been a licensed attorney for two years at the time of his misconduct (ABA Standards § 9.32).

Based on the presumptive sanction of suspension, the analysis of the aggravation, mitigation, and pertinent case law, as well as its "collective sense of fairness and proportionality," the majority ultimately concluded that respondent should be suspended for one year and one day, with three months to be actually served and the remaining period stayed upon completion of probation ( Ziankovich, 433 P.3d at 656 ).

The Hearing Board also directed respondent to, among other things, promptly make restitution to Vyshniavska and Zhakyavichyus ($1,500 and $1,000, respectively) and barred him from seeking reinstatement to practice law in Colorado until he did so.¹

In dissent, the PDJ disagreed as to the length of suspension, believing respondent should serve nine months of his suspension, but agreed with the majority that the remainder of the one year and one day suspension should be stayed upon completion of a two-year probation period and that the conditions as set forth in the opinion should be imposed.

In July 2018, the Hearing Board stayed respondent's suspension pending his appeal to the Colorado Supreme Court, but on October 10, 2018, the PDJ revoked the stay based on respondent's failure to comply with the practice monitoring condition. Thus, by order dated October 31, 2018, the PDJ directed respondent's immediate suspension in accordance with the Hearing Board's June 30, 2018 opinion. By order dated February 1, 2019, the Colorado Supreme Court denied respondent's appeal and affirmed the Hearing Board's decision in full. In or about April 2019, respondent filed a writ of certiorari with the U.S. Supreme Court (see Ziankovich v. Colordao, ––– U.S. ––––, 140 S Ct 133, 205 L.Ed.2d 41 [2019] ), which was denied.

By order dated March 21, 2019, the Board of Immigration Appeals (BIA) immediately suspended respondent from practice before the Board, the Immigration Courts, and the U.S. Department of Homeland Security based on his discipline in Colorado.

As stated above the Committee requests that, pursuant to 22 NYCRR 1240.13(a) and (b), this Court find respondent has been disciplined by a foreign jurisdiction and order him to demonstrate why reciprocal discipline should not be imposed for the underlying misconduct; and/or suspending him for one year, or, in the alternative, imposing such sanction as this Court deems appropriate based on his discipline in Colorado.

The only defenses to reciprocal discipline are enumerated at 22 NYCRR 1240.13(b), to wit: a lack of notice and opportunity to be heard in the foreign jurisdiction; an infirmity of proof establishing the misconduct; or the misconduct at issue in the foreign jurisdiction would not constitute misconduct in New York ( Matter of Hoffman, 34 A.D.3d 1, 822 N.Y.S.2d 42 [1st Dept. 2006] ).

Respon...