J. Ronald Fishbein v. Nicholas Cambio ( 2018 )

Issued December 10, 2018
Corrected December 11, 2018
Supreme Court
No. 2017-187-Appeal.
(PC 16-1676)
J. Ronald Fishbein :
v. :
Nicholas Cambio. :
ORDER
The plaintiff—J. Ronald Fishbein—appeals pro se from a Superior Court order dismissing
his complaint against the defendant, Nicholas E. Cambio, to recover the balance of a debt on a
judgment. This case came before the Supreme Court for oral argument on October 24, 2018,
pursuant to an order directing the parties to appear and show cause why the issues raised in this
appeal should not summarily be decided. After hearing argument and examining the memoranda
filed by and on behalf of the parties, we are of the opinion that cause has not been shown, and we
proceed to decide the appeal at this time without further briefing or argument.
In 1992, DAP Financial Management Company (DAP) acquired a number of negotiable
instruments from the Bank of New England; one was a promissory note executed by Cambio. In
1997, the note was rewritten to be made payable to DAP in the amount of $100,000. Two years
later, Fishbein, acting as legal counsel for DAP, filed an action in Providence County Superior
Court on behalf of DAP against Cambio to collect on the note. Default judgment was eventually
entered against Cambio in that action for $140,278.36, plus statutory interest. After entry of that
judgment, Cambio made periodic payments, but the last payment that he made to DAP was on
-1-
December 29, 2008. 1 According to Fishbein, Cambio owes a balance of $80,268.96, plus interest,
on the judgment.
On December 13, 2010, this Court entered an order suspending Fishbein from the practice
of law, and he has not been an active attorney since that time. See In re Fishbein: (Viscione), 8
A.3d 1038, 1039 (R.I. 2010) (mem.). Fishbein has represented that he unsuccessfully attempted to
find new representation for DAP to recover on the judgment against Cambio.
The underlying action against Cambio was dismissed on January 3, 2012, because the case
had been inactive for five years. See G.L. 1956 § 9-8-5. Nonetheless, Fishbein approached DAP
in March 2016 to inquire about the balance due on the Cambio judgment. According to Fishbein,
he approached DAP about acquiring the right to recover the remaining portion of the judgment
because he had lost his home in a tax sale and was in need of resources to redeem his property.
Alfred W. Bowman, Jr., the President of DAP, swore in an affidavit that he had been prepared to
assign the judgment to Fishbein for no consideration because he lacked confidence in any future
recovery of the remaining amount against Cambio and because he wanted to reward Fishbein for
his past legal work for DAP.
In any event, DAP executed a document assigning the balance of the judgment to Fishbein.
Contemporaneously, Fishbein executed a nonnegotiable promissory note in which he promised to
pay DAP half of any payments received from Cambio, until a total of $10,000 was paid, as
consideration for the assignment. Fishbein then filed this suit against Cambio for the balance of
the judgment, and Cambio filed a motion for summary judgment, contending that Fishbein could
not pursue the action because the 1999 case had been dismissed pursuant to § 9-8-5 and the action
1
According to Fishbein, Cambio stopped making payments after this date because he contested
the remaining amount.
-2-
had not been reinstated within one year, as required by § 9-8-6. Fishbein objected to that motion,
and he also filed a cross-motion for summary judgment; Cambio objected to that cross-motion.
The Superior Court held several hearings on these motions. At each one, the hearing
justice, sua sponte, said that she was troubled by the assignment of the interest in the Cambio
judgment to Fishbein because DAP was Fishbein’s former client and Fishbein was suspended
from the practice of law. Specifically, the hearing justice was concerned that DAP retained an
interest in the judgment because Fishbein had agreed to pay DAP up to $10,000 from what he
recovered from Cambio.
In March 2017, the hearing justice rendered a bench decision, ruling that Fishbein—a
suspended attorney—could not pursue the action against Cambio because DAP retained an interest
in pursuit of that judgment. She cited several cases from other jurisdictions to support her finding
that a disbarred or suspended attorney was barred from bringing a pro se collection action that had
been assigned to him. The hearing justice indicated that she was not deciding the merits of the
parties’ motions for summary judgment, but rather was dismissing the matter because Fishbein’s
involvement would constitute the unauthorized practice of law. An order was entered dismissing
Fishbein’s complaint on the basis that the assignment to Fishbein violated public policy and was
therefore invalid. Fishbein filed a notice of appeal to this Court.
On appeal, Fishbein argues, inter alia, that the assignment from DAP does not constitute
the unauthorized practice of law because the consideration to be paid to DAP pales in comparison
to the balance on the judgment. We do not agree with this argument and hold that the hearing
justice was correct when she dismissed the case. Although there are no Rhode Island cases
directly on point with the issue to be decided in this case, there are cases from other jurisdictions
that are in agreement with the hearing justice’s ruling. See Iowa Supreme Court Commission on
-3-
the Unauthorized Practice of Law v. Sullins, 893 N.W.2d 864, 869-70 n.3, 876 (Iowa 2017)
(holding a disbarred attorney was engaged in the unauthorized practice of law when he accepted
an assignment of a judgment because the assignor of the judgment retained a monetary interest in
the assigned claim and “[e]very dollar [the disbarred attorney] failed to collect was a dollar [the
assignor] still owed him. Every dollar [the disbarred attorney] collected above what [the assignor]
owed him was money in her pocket”); see also In re Brooms, 447 B.R. 258, 266 (B.A.P. 9th Cir.
2011) (“If [the assignor] retained any interest in the Judgment or any recovery thereon, then [the
assignee] was engaging in the unauthorized practice of law by representing another party when he
is not a licensed attorney.”). Here, Fishbein was representing DAP—his former client during the
time he was a practicing attorney—by promising to make payments totaling up to $10,000 to DAP
on amounts successfully recovered from Cambio on the remaining balance of the judgment if he
won his suit against Cambio. This constitutes the unauthorized practice of law.
For the reasons stated herein, we affirm the order of the Superior Court. The record shall
be returned to that tribunal.
Entered as an Order of this Court this 10th day of December, 2018.
____________/s/______________
Clerk
-4-
STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
SUPREME COURT – CLERK’S OFFICE
ORDER COVER SHEET
Title of Case J. Ronald Fishbein v. Nicholas Cambio.
No. 2017-187-Appeal.
Case Number
(PC 16-1676)
December 10, 2018
Date Order Filed
Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
Indeglia, JJ.
Providence County Superior Court
Source of Appeal
Associate Justice Maureen B. Keough
Judicial Officer From Lower Court
For Plaintiff:
J. Ronald Fishbein, Pro Se
Attorney(s) on Appeal
For Defendant:
Richard G. Riendeau, Esq.
SU-CMS-02B (revised November 2016)