Prospective Sanction

An attorney who was convicted of a number of criminal offenses in New Jersey relating to the conversion of a $75,000 settlement was suspended for three years by the New York Appellate Division for the First Judicial Department. The conviction is described in the court’s opinion:

…respondent was convicted, after a jury trial, in Superior Court ofthe State of New Jersey, Union County, of one count of theft by failureto make required disposition of property in the third degree (NJ StatAnn § 2C:20-9), one count of misapplication of entrusted property inthe third degree (NJ Stat Ann § 2C:21-15) and two counts of forgery inthe fourth degree (NJ Stat Ann § 2C:21-1a[2], [3]). He was sentenced tothree years’ probation, 500 hours community service, and a fine of$5,000, plus assessments.

Respondent’s theft convictions resulted from his failure to paycertain clients their $50,000 portion of a $75,000 settlement payment,received in January 1999 in connection with the settlement of theclients’ wrongful death action relating to the death of their son.Respondent deposited the $75,000 check into his attorney trust account,which had a balance of $250 the previous day. Respondent then depletedmost of the funds in the escrow account within two days, by writingchecks to pay clients and other firm obligations. The forgeryconvictions were based on his forgery of the clients’ signatures on thesettlement check, which was made payable to respondent’s law firm andthe two clients. Respondent eventually made payment of the $50,000 tohis clients in December 1999, but only after he became aware of apolice investigation into his conduct. After an ethics investigationwas commenced, respondent consented to his immediate and temporarysuspension in New Jersey in 2000.

The attorney was suspended in New York on an interim basis in 2003. The conviction, except for the forgery, was reversed on appeal because ethics rules were submitted to the jury without proper instructions. A referee recommended a suspension in New York that would have reinstated the attorney, which the court rejected in favor of a suspension that will run from the date of the decision here.

The Referee’s recommended sanction of a three-year retroactivesuspension to January 2004, which would have already expired in January2007, is too lenient^.While a two-year suspension might be appropriate if the misconduct waslimited to the forgery, respondent’s additional misconduct in makingfalse representations to his clients and his temporary use of suchfunds to pay personal or firm obligations warrants a more severesanction. Also relevant is respondent’s minimal expression of remorse,since it provides this Court with a basis to evaluate whetherrespondent is deserving of a chance to practice law again in this Statein the near future. In sum, having considered respondent’s convictionsof the serious crimes of fourth-degree forgery, his misrepresentationsand use of escrow funds, and the aggravating and mitigatingcircumstances previously mentioned, we conclude that a suspension ofthree years is the appropriate sanction.

(Mike Frisch)