A plaintiffs attorney was sanctioned $3,000 and ordered to pay his adversary’s legal fees after he failed to disclose to the court and opposing counsel, amid settlement discussions, that his client had died months earlier.
Brandon D. Sherr, an associate of the Law Office of Justin A. Zeller in Manhattan, a wage-and-hour plaintiffs firm, did not disclose that his client had died until eight months after his death and four months after he said he learned of it, according to U.S. District Judge P. Kevin Castel of the Southern District of New York in a Sept. 8 decision.
Sherr represented William Mok, who died in September 2016, in a wage-and-hour lawsuit brought in October 2014 against a restaurant.
He admitted that he learned of Mok’s death in January 2017, yet afterward obtained adjournments from the court on the premise that he was negotiating a settlement for his client.
After the court warned there could be no more adjournments, Sherr finally disclosed in June that his client was dead.
Sherr’s attorney in the sanctions matter, Stephen D. Hans, told the judge in court papers that “there was no opportunity to discuss” the client’s death with other counsel. “What he did was to engage in settlement talks believing an estate representative would be appointed shortly,” Hans said.
Sherr, in an affidavit, said he regretted his “negligent manner in this case.” He described his conduct as “foolish and against all the rules” but said it was not undertaken with “intent or premeditation.”
But the judge said it was clear Sherr’s “actions were taken with ‘intent’ and were subjectively in bad faith.” The judge added, “He knew he was purporting to settle a case on behalf of a dead client without disclosing that his client was dead. He knew full well that his client had not testified at a deposition, that his client had peculiar knowledge of the hours that he had worked and that disclosure of the death would have materially affected the value of the claim.”
“He knew that the plaintiff could not agree to the terms of a settlement because he was dead and no lawful representative of the estate had been appointed,” Castel wrote, adding that Sherr and his firm stood to gain from the recovery of Mok’s claim, “but the claim did not belong to Sherr or his firm.”
Sherr had already been sanctioned $3,000 in January for failing to submit pretrial documents on time in the case.
Castel imposed another $3,000 sanction and ordered him to pay defense counsel’s legal fees from the date that Sherr had a duty to disclose the death. Defense attorney Morton Minsley on Tuesday submitted a $5,176 bill.
In a brief interview, Sherr said Mok’s case was being handled on contingency. He declined to comment on Castel’s decision.