Erie attorney David Agresti got a $50,000 retainer in May 2019 to represent a client in a drug case. He was fired five days later but failed to refund the money, according to disciplinary findings.
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The Pennsylvania Supreme Court has suspended an Erie lawyer for three years for a number of financial-related problems, including depositing a $50,000 retainer in his personal checking account, rather than a business trust account, and using the money to buy a boat and pay tuition at Cathedral Preparatory School even after the client fired the lawyer days after he was hired and demanded the retainer back.
The suspension applies to David C. Agresti, 52, according to an order the Supreme Court signed on Wednesday. The court accepted a May 21 report from the state Supreme Court’s Disciplinary Board, which recommended the three-year suspension and detailed its findings against Agresti.
The board found that he violated numerous rules of professional conduct for lawyers including prohibition against collecting “an illegal or clearly excessive fee” and a requirement that lawyers keep funds related to their profession in a separate account, like a trust account, and not a personal bank account. A retainer placed in a trust account is “to be drawn upon as earned,” the board said in its report.
Agresti, 52, a lawyer since 1997 and in his own private practice since 2010, could not be immediately reached for comment. He had asked that the Disciplinary Board impose a public reprimand, according to the board’s report.
The report detailed three cases of professional misconduct against Agresti, with much of the investigation focused on the case in which Agresti secured the $50,000 retainer on May 15, 2019, to represent a client in a drug case.
The client fired Agresti five days later and he and his family demanded the retainer back, but Agresti did not repay the money, wrongfully claiming the retainer was “nonrefundable,” the Disciplinary Board said. It also said Agresti threatened to sue the client and his family over their attempts to get back the money.
Instead, according to the board, Agresti started spending the $50,000 that was in his personal checking account, including writing a $4,000 tuition check to Cathedral Prep on May 28, 2019, and withdrawing $23,000 to buy a boat on June 14, 2019.
Before Agresti deposited the $50,000 into his personal checking account, according to the board, the account balance “was negative $61.27.”
Agresti later sold his boat for $18,000, and put the proceeds in his personal checking account, according to the board. Agresti in November 2019 repaid the former client and his family $5,000 with proceeds from the boat sale, but provided no other refund, according to the board. The board said that Agresti made the $5,000 payment only after he was under the disciplinary investigation.
The client’s family later filed a claim with the Pennsylvania Lawyers Fund for Client Security, which awarded the client’s family $39,188.50 in August 2020. The amount excluded the $5,000 that Agresti had repaid the family and the $5,812.50 he had earned in the case, including representing the client at a bond hearing before Agresti was fired.
Agresti made full restitution to the client security fund on Aug. 28, 2020, the Disciplinary Board said. That was nearly four months after the Disciplinary Board’s Office of Disciplinary Counsel, on May 8, 2020, had filed the rules violations against Agresti, which prompted hearings and the Disciplinary Board’s decision.
In ruling against Agresti, the board found that Agresti had demonstrated “no credible remorse,” failed to apologize to the clients he had wronged and had violated basic financial accounting rules for lawyers by failing to place the $50,000 in a business trust account.
Agresti “deposited the check into his personal account and immediately began to disburse the funds for personal expenditures, despite the fact that he had not earned those funds,” the board said in its report.
In recommending a suspension of three years, the board said in its report that the record in the case “reveals numerous weighty aggravating factors.” Among those factors, the board said, was Agresti’s insistence throughout the disciplinary investigation that he did nothing wrong.
Agresti, according to the board’s ruling, “maintained his self-serving claims throughout the disciplinary hearing that he was entitled to keep the entire fee advance of $50,000 because (his client and his client’s family) somehow knew his fee was ‘nonrefundable.'”