NY Supreme Court Disqualifies Higbee lawyer: Virtual offices not sufficient

[Matthew Chan]

I have some news that was brought to my attention.

Raymonh Ngo "Of Counsel" Lawyer for Higbee & Associates was disqualified by Justice Jerome Murphy of the NY Supreme Court in Nassau County when the court bluntly and publicly ruled that Higbee's virtual offices was insufficient to claim a legitimate/sufficient New York presence.  (Coincidentally, our own Oscar Michelen is actually based in Nassau County.) Higbee's use of virtual offices/rented addresses is something that we have known since 2016 and called bullshit on. Both Robert and I worked to investigate all the public addresses Higbee reportedly he had.

These recent articles provide a general report of the Higbee lawyer disqualification.

https://debanked.com/2018/01/attorney-suing-dozens-of-mca-companies-disqualified-as-counsel/

https://debanked.com/2018/04/usury-suit-by-higbee-associates-made-null-and-void-by-judge/

https://www.bna.com/firm-virtual-new-n73014474110/

The articles speak themselves. However, I dug further into where New York Supreme Court case information is posted online.

https://iapps.courts.state.ny.us/webcivil/FCASSearch

The case is: Platinum Rapid Funding Group, Ltd. vs. H D W of Raleigh, Inc. d/b/a Pure Med Spa, a/k/a Pure Cosmetic and Surgical Center and Holly Donielle Wybel a/k/a Holly D. Wybel, Index # 0605890/2017

I downloaded several important court filings and exhibits to look into the nitty-gritty, blood and guts of the case.  I found a LOT of detailed information.

First, I directly quote several passages in the ruling dated December 20, 2017.

Based upon the papers submitted herewith, this Court finds that, in this case, neither Higbee & Associates ("Higbee") nor Rayminh L. Ngo had a physical office in the State of New York at the time that they appeared in this action on behalf of the defendants. Thus, said entities are all non-residents and have failed to comply with the Judiciary Law §470. Indeed, the papers herein establish that Ngo and Higbee's pleading -the Verified Answer and Counterclaims - identified their principal office to be located in Santa Ana, California. In addition, Ngo's attorney registration states that he is not an associate or partner of Higbee and is actually the principal of the Ngo Law Practice - a law firm based in Salt Lake City, Utah.

In his affirmation in opposition, Ngo avers that he is "an attorney duly admitted to practice law before the courts of the State of New York and ~isl currently the attorney of record for the Defendants". He adds that he is representing the defendants in his capacity as "of-counsel" to Higbee, "a multijurisdictional law firm based in California with whom I have long been associated" and which "maintains office spaces in various states, including in New York" where it currently maintains two offices. Specifically, it is counsel's contention that Higbee currently has lease agreements for two office spaces and addresses in New York at: 48 Wall Street, Suite 1100, New York, NY 10005 and 605 West Genesee Street, Suite 101, Syracuse, New York 13204.

Despite their contentions however, this Court finds no merit to the defendants' counsel's claims that they should not be disqualified. Initially, tqis Court cannot overlook the fact that at no point does Ngo aver that either he or Higbee have attorneys or law firm staff at either of the two New York addresses that they claim to be located at.

Moreover, while Ngo furnishes the lease agreements in his Supplemental Affirmation in Opposition, said documents also fail to establish that at the time that this lawsuit was commenced i.e., on or about June 20, 2017 - and at the time they appeared in this action on behalf of the defendants, the defendants' counsel had offices in New York State. Specifically, the lease agreement document furnished by the defendants for the 48 Wall Street address clearly states that said lease agreement commenced on July 13,2012 and expired on October 31,2012. Similarly, the office sub-lease agreement furnished by counsel for the 605 W. Genesee Street location clearly states that said lease agreement commenced on October 3, 2017. (The W. Genesee Street lease agreement was signed on October 3, 2017.) Thus, there has been no showing or any evidence that at the time this suit was commenced, the defendants' attorneys had offices in the State of New York.

In the end, this Court finds that there is no evidence on this record that Ngo and Higbee had physical addresses in New York. Moreover, this Court cannot overlook the fact that the defendants have failed to offer any competing evidence against the sworn affidavits of Steven Pena and Jakeen Penss, Sr., process servers who attest that they physically went to the 48 Wall Street and or 605 West Genesee addresses, respectively, and confirmed that neither Ngo nor Higbee had physical offices at these locations. Accordingly, this Court herewith awards the plaintiff its instant motion to disqualify the defendants' attorneys of record - Raymin L. Ngo and Higbee & Associates.

More to come...

[Matthew Chan]

Christopher Murray, NY lawyer for the plaintiff, made the following written statements regarding Raymonh Ngo and Higbee & Associates.

1. I am the attorney for Plaintiff, PLATINUM RAPID FUNDING GROUP LTD. ("Platinum"), in the above-captioned action. I am fully familiar with the facts and circumstances of this action and all prior pleadings and proceedings heretofore had herein.

2. I submit this reply application in further support of Plaintiff's motion by Order to Show Cause seeking an Order:

a. Pursuant to NYS Jud. Law §470, disqualifying Rayminh L. Ngo and Higbee & Associates, from appearing before this court and representing the Defendants for failure to maintain an office for the transaction of law business in the state of New York;

b. Striking Defendants' Defendants Answer, including any exhibits, and Rayminh L. Ngo's Notice of Appearance upon the grounds that Rayminh L. Ngo and Higbee & Associates do not meet the requirements for practicing law in the State of New York;

c. Staying this action for thirty (30) days so that Defendants can procure new counsel;

d. Sanctioning Defendants' counsel in an amount to be decided by the Court plus costs in the amount of $140.00, Plaintiff's actual cost of filing a Request for Judicial Intervention and the instant Order to Show Cause; and

e. Granting Plaintiff such other, future, and different relief as may be just, proper, and/or equitable.

3. Rayminh L. Ngo or Higbee & Associates do not claim that they ever have attorneys or law firm staff at either of the two addresses they claim to be located at. They do not claim they have ever had attorneys or staff at those addresses, and they do not claim they have ever been to either location.

4. Rayminh L. Ngo and Higbee & Associates do not provide leases or affidavits of any employees or staff that have ever allegedly been to either of their claimed New York offices.

5. Despite their unsupported assertions, neither Rayminh L. Ngo nor Higbee & Associates have permanent physical offices at either address.

6. The affidavit of Steven Pena, a process server that physically went to the 48 Wall Street address and confirmed that neither Rayminh L. Ngo nor Higbee & Associates have permanent physical offices at 48 Wall Street is attached hereto as Exhibit 1.

7. The affidavit of Jakeem Penn Sr., a process server that physically went to the 605 West Genesee address and confirmed that neither Rayminh L. Ngo nor Higbee & Associates have permanent physical offices at 605 West Genesee is attached hereto as Exhibit 2.

8. Plaintiff served the Order to Show Cause in the time, place and manner required by the Court. A copy of the Affidavit of Service is attached hereto as Exhibit 3.

9. For the foregoing reasons, the Court should grant Plaintiff's Order to Show Cause in its entirety.

More to come...

[Matthew Chan]

The email below came from a court exhibit.  In an email from NY Attorney Chris Murry written to Higbee Lawyer, Raymonh Ngo:

From: cmurray@XXXXX
Sent: Friday, September 22, 2017 8:13 AM
To: '[email protected]'; '[email protected]'
Subject: L572 - Platinum Rapid Funding v. H D W of Raleigh, Inc - Index No. 605890/2017

Mr. Ngo,

As you’re aware, my office represents Platinum Rapid Funding Group in Platinum Rapid Funding v. H D W of Raleigh, Inc ‐ Index No. 605890/2017. It has come to my attention that, despite the fact that you have filed an Answer for the Defendants, neither you nor Higbee & Associates are currently in compliance with New York Judiciary Law Section 470. Based upon your firm’s failure to maintain a physical office in New York, you are not authorized to appear as counsel for the Defendants in this lawsuit (or any action in New York). This is a grave and troubling development as the NYSCEF system indicates that you have appeared in dozens of litigations despite the fact that you are effectively unauthorized to practice law while you are not in compliance with Judiciary Law 470.

We believe it to be our obligation to bring this matter to the Court’s attention if you do not immediately withdraw as counsel or remedy your non‐compliance with Judiciary Law 470. Please advise how you wish to proceed.

[icepick]

I want to send the defense lawyer that achieved this a Christmas present and a big LOL singing telegram to Higbee's main office.

[Medieval1028]

I wonder what attorney works for Higbee in other states...Pennsylvania in particular?

[A Lawyer]

This is very interesting, I am surprised someone didn't make this challenge earlier. It seems to me that the pertinent fact was the Rayminh Ngo was an Of Counsel and not an actual attorney employed at the Higbee Firm, and that the lease for the virtual office space was signed only after the representation began. I wonder if it would have been a different outcome if the lease was active when he first started representing the client. Unfortunately for our purposes, I think this rule is for New York State court and wouldn't apply for Federal court in New York, but I could be mistaken. Still, it's a good find.

[Robert Krausankas (BuddhaPi)]

Unfortunately for our purposes, I think this rule is for New York State court and wouldn't apply for Federal court in New York, but I could be mistaken. Still, it's a good find.

That's a good question, however i wonder if one could argue that the Higbee firms now has a track record of not being truthful..might not get far in front of a federal judge, but probably worth it to get it on record somehow.. Another question I have which could effect these other states he supposedly does business inn... wouldn't it be considered "false advertising" if he simply leases "virtual spaces".. I'm sure most Bar assoc. have strict rules on advertising..maybe this could be a basis for bar complaints??

[kingkendall]

This explains why Higbee has hired a new lawyer and his name is Ryan E. Carreon.  Sorry, I named the wrong lawyer earlier. 

https://www.higbeeassociates.com/about/attorneys/ryan-carreon/

Thank you Matthew!

Those articles are GOLDEN for New York resident that have to deal with Mathew Higbee and his questionable ethics.  A federal court has said so as much. 

[Matthew Chan]

What I didn't have a chance to say is that I am generally convinced that, for the purposes of a lawsuit, NO reputable state court in the U.S. will accept this "virtual office" nonsense where the lawyer and law firm don't have a legitimate physical presence in the state.

Any lawyer going up against Higbee & Associates should be able to bring this issue up. It is a cheat that Mathew Higbee himself authorized and perpetrated. No chance all this "national law firm" shit could go up on his website without his approval. No way all of these lease agreements could be signed with all these virtual offices without his approval.

Further, there are over 20+ cases (40+ parties consisting of both plaintiffs and defendants) in which Higbee represented that could probably be unraveled.  Both parties are affected by this recent development. If any opposing party gets wind of this, I believe a previously closed case could be reopened due to Higbee law firm's false claim they provide legitimate representation to their clients. Anyone can view the cases and parties of 20+ clients (40+ parties) that have been affected this.

I know from personal experience that a closed case can be reopened. When a compelling reason is given to a court and a motion is filed, the case gets reopened and BANG a judge gets assigned to respond to the matter.

Higbee now has 20+ clients that potentially have their respective rulings and settlements unraveled.

Special thanks to the informant who brought the articles and the issue to my attention.

[A Lawyer]

What I didn't have a chance to say is that I am generally convinced that, for the purposes of a lawsuit, NO reputable state court in the U.S. will accept this "virtual office" nonsense where the lawyer and law firm don't have a legitimate physical presence in the state.

I guess we can agree to disagree on this. There is no excuse for Higbee to not abide by the New York rules, however, it is not uncommon for lawyers to be barred in multiple jurisdictions and to remotely practice in states through a virtual office or without having any physical presence whatsoever. I know many attorneys that do this.

Each state makes their own rules regarding requirements for practice. Many states either have no express prohibition against virtual offices and some explicitly allow for attorneys to use virtual office space. Other states have a "bona fide office" rule, i.e. an attorney is required to have an actual physical office that the attorney works out of, but most of those states don't explicitly require the "bona fide office" be located within the state itself.

I found this interesting breakdown of each state's rules:

https://lawyerist.com/states-require-bona-fide-office/

From what I can tell, New York is an outlier in requiring that non-resident attorneys have a physical office in New York. Again, that's not to excuse Higbee's misstep here, but to say that no reputable state would accept a virtual office is an over statement.

[Matthew Chan]

I am willing to concede that I didn't personally research the physical office requirement in each of the 50 state. But what I am saying is that if you are on the defensive, you use everything you have available to defend.  They NY Supreme Ct case has helped open that door as a defense strategy.  It is a legitimate argument you can make. Whether or not a court accepts that argument is obviously not guaranteed. I am not a lawyer but I can tell you, I can make a strong, persuasive argument on how permitting lawyers using "virtual offices" could be a big problem regardless of what is on the books. It would open the door to ALL lawyers easily paying a nominal monthly fee to fully practice in any state even though a lawyer has spent little or not time understanding a state's customs, laws, etc. It would be bad public policy. Not to mention, all lawyers within a state would suddenly find themselves to potentially competing with lawyers from all 50 states just because they could rent an address.

And that is what Higbee is trying to do. An end run around on the local lawyers from his home base of California.

Each state makes their own rules regarding requirements for practice. Many states either have no express prohibition against virtual offices and some explicitly allow for attorneys to use virtual office space. Other states have a "bona fide office" rule, i.e. an attorney is required to have an actual physical office that the attorney works out of, but most of those states don't explicitly require the "bona fide office" be located within the state itself.

From what I can tell, New York is an outlier in requiring that non-resident attorneys have a physical office in New York. Again, that's not to excuse Higbee's misstep here, but to say that no reputable state would accept a virtual office is an over statement.