“Unmoved” Court Grants Interim Suspensions

The New York Appellate Division for the First Judicial Department has imposed an interim suspension based on the attorney’s inadequate cooperation with the investigation

Respondent submitted his own affidavit, sworn May 26, 2016, opposing the Committee’s motion. He claims that none of his clients lost escrow funds that he held for them. Additionally, he responds that his lack of cooperation with the Committee in meeting their requests was not willful, but rather, the result of personal issues and professional constraints. Principally, he asserts that in 2012, he was dealing with the death of both his sister and his mother, and that he subsequently had to undergo treatment with a psychiatrist, who in a letter dated May 23, 2016, reported respondent’s diagnosis of Attention Deficit Hyperactive Disorder (ADHD). Respondent claimed that he was also unable to provide adequate documentation because his office cotenant denied him access to their shared premises in June 2015 and he was not able to return until he obtained a court order in January 2016.

Pursuant to 22 NYCRR § 603.4(e)(1)(i), this Court may order the immediate suspension of an attorney from the practice of law upon a finding that the attorney is guilty of professional misconduct which immediately threatens the public interest. This finding may be based upon “the attorney’s…failure…to comply with any lawful demand of this court or the Departmental Disciplinary Committee made in connection with any investigation, hearing, or disciplinary proceeding.”

In this case, there is ample evidence that the respondent has failed to cooperate with the Committee’s requests. Respondent has not provided any explanation regarding his failure to complete the Excel spreadsheet and respondent has yet to provide any explanation of the shortfalls in his IOLA account after his receipt of the $225,000 deposit. Respondent’s lack of cooperation is also evidenced by the fact that he failed to appear at three depositions, and his testimony was ultimately secured only by judicial subpoena. Additionally, respondent failed to answer the Committee’s recent inquiry regarding his alleged conversion of $139,000 in escrowed client funds.

Notwithstanding respondent’s protests, the evidence in this record weighs heavily in favor of interim suspension. The Committee has made numerous attempts since September 2013 to obtain information from respondent (long before he was locked out of his office), but he has repeatedly failed to comply. Respondent’s noncompliance with Committee requests has [*3]threatened the public interest in the effectiveness of the attorney disciplinary system (See Matter of Reid, 137 AD3d 25 [1st Dept 2016] [interim suspension where attorney, who initially provided limited cooperation via bank records and appearing for a deposition, subsequently failed to answer two complaints and provide trust account information for the Committee’s Excel spreadsheet]).

Additionally, this Court is unmoved by respondent’s attempt at mitigation. His ADHD has not been shown to impair his abilities to comply with the Committee’s requests, given the four trials he tried to verdict without assistance in 2014. Additionally, his claimed lack of access to his office is belied by his own admission that he has been granted access to his office by court order since January 2016.

The court also ordered interim suspension in an unrelated matter.

…Respondent failed to respond to his requests that he verify that the $175,000 he was holding in escrow remained intact and that he had commenced suit against the firm. After repeated, unsuccessful attempts to contact respondent and get his money back, the client filed complaints with the Committee and the New York County District Attorney’s Office.

On or about December 18, 2015, respondent was indicted in New York County for grand larceny in the second degree in connection with his failure to remit two of his client’s settlement funds, and grand larceny in the third degree for allegedly stealing property from another individual.

On December 22, 2015, respondent was arrested in Miami, Florida; he waived extradition proceedings and was transported back to New York where, on January 6, 2016, he was arraigned on the indictment. Respondent entered a plea of not guilty and the court set bail at $500,000 cash or a $250,000 bond. Respondent has not posted bail and remains incarcerated awaiting trial.

In December 2015, the Committee received three additional complaints against respondent containing similar allegations to those discussed above. These complaints have been sent to respondent’s criminal attorney on respondent’s behalf for answers.

(Mike Frisch)