IN RE: Jay C. SHERMAN (2026)

OPINION & ORDER

The Grievance Committee for the Ninth Judicial District served the respondent with a notice of petition and verified petition, both dated August 13, 2024, and the respondent served and filed a verified answer dated October 28, 2024.  By decision and order on application dated December 19, 2024, this Court appointed the Honorable Sandra L. Sgroi, as Special Referee, to hear and report.

The Grievance Committee and the respondent now jointly move pursuant to 22 NYCRR 1240.8(a)(5) for discipline by consent, and request the imposition of a public censure.  Pursuant to 22 NYCRR 1240.8(a)(5)(i), the parties submitted a joint affirmation in support of the motion.  In addition, the respondent submitted an affidavit sworn to on April 14, 2025.  Based on a stipulation of facts presented with the joint affirmation, the parties have agreed that the following factual specifications are not in dispute.

The respondent was retained on or about July 15, 2020, by Segundo Tama Guartazaca to file on Guartazaca's behalf an I–589 form, which is an application for asylum and for withholding of removal.  Guartazaca paid the respondent $3,000 under a retainer agreement providing that the respondent would perform “all work ․ in completing and filing ․ client's I–589 form and any USCIS responses as needed.”  The respondent failed to file the asylum application on Guartazaca's behalf until on or about May 25, 2023.

The application that the respondent filed on behalf of Guartazaca contained numerous errors.  The respondent checked “Yes” in response to the question, “Have you, your family, or close friends or colleagues ever experienced harm or mistreatment or threats in the past by anyone?” but left the field below the question blank, despite a prompt requiring additional detail with respect to the harm, mistreatment, or threats indicated by the “Yes” response.  On four additional occasions, the respondent likewise failed to provide required information, by checking “Yes” in response to a question, but leaving blank the field supplied for providing additional pertinent detail after an affirmative answer.  On two other occasions, the respondent checked “No” to questions, even though those negative responses were in direct contradiction to a supplemental form in which Guartazaca described certain interactions with the National Police of Ecuador.

Prior to the respondent's May 25, 2023 filing, Guartazaca, by letter dated September 2, 2022, requested that the respondent issue a full refund of the legal fee he had paid to the respondent due to the respondent's inadequate services.  Despite receiving Guartazaca's September 2, 2022 letter, the respondent failed to forward, pursuant to 22 NYCRR 137.6(a)(1), a written notice to Guartazaca entitled Notice of Client's Right to Arbitrate, by certified mail or by personal service.

The respondent's retainer agreement with Guartazaca stated, “If Client Terminates Attorney's representation for any reason whatsoever prior to the conclusion of these matters, Client shall pay the fair and reasonable rate for all service and costs rendered prior to such termination.”  The retainer agreement did not provide any further explanation for how the fee would be deemed earned or otherwise calculated in the event that the respondent was discharged or failed to provide significant services.  The respondent ultimately returned the retainer fee to Guartazaca.

As required by 22 NYCRR 1240.8(a)(5)(iii), the respondent submitted an affidavit with this motion in which he conditionally admits the foregoing facts, and that those facts establish that he failed to act with reasonable diligence and promptness in representing a client, in violation of rule 1.3(a) of the Rules of Professional Conduct (22 NYCRR 1200.0);  failed to provide competent representation to a client, in violation of rule 1.1(a) of the Rules of Professional Conduct;  made an agreement for, charged, or collected an excessive fee, in violation of rule 1.5(a) of the Rules of Professional Conduct;  engaged in conduct prejudicial to the administration of justice and adversely reflecting on his fitness as a lawyer, in violation of rule 8.4(d) and (h) of the Rules of Professional Conduct;  and entered into an arrangement for, charged, or collected a retainer fee that did not define in plain language or set forth the circumstances under which a minimum fee may be incurred, in violation of rule 1.5(d)(4) of the Rules of Professional Conduct.  The respondent consents to the agreed upon discipline of a public censure, which consent is given freely and voluntarily without coercion or duress.  The respondent states that he is fully aware of the consequences of consenting to such discipline.

The parties submit that this Court should consider, in aggravation, the respondent's prior disciplinary history, which consists of an admonition, personally delivered, for similar conduct as occurred here.  In mitigation, the parties submit that this Court should consider the respondent's cooperation with the investigation of this matter;  the respondent's acknowledgment of his mistakes and his remorse;  the respondent's full refund paid to Guartazaca;  and the respondent's lack of venal intent.

As to the appropriate sanction, the parties contend that a sanction of a public censure would be in accord with this Court's precedent under similar circumstances.

Based on the foregoing, we find that the joint motion for discipline by consent pursuant to 22 NYCRR 1240.8(a)(5) should be granted, and that a public censure is warranted in view of the respondent's admitted misconduct as well as the aggravating and mitigating factors presented herein (see Matter of Schnee, 61 A.D.3d 198, 873 N.Y.S.2d 219).

ORDERED that the joint motion pursuant to 22 NYCRR 1240.8(a)(5) for discipline by consent is granted;  and it is further,

ORDERED that the respondent, Jay C. Sherman, is publicly censured for his professional misconduct.

PER CURIAM.

LASALLE, P.J., DILLON, DUFFY, BARROS and VENTURA, JJ., concur.