Second Chances
Disbarment has been ordered by the New York Appellate Division for the Second Judicial Department of an attorney who had been reinstated after an earlier three-year suspension.
His prior discipline history
The respondent was previously suspended in 1993 for three years by the Appellate Division, First Department, based on a pervasive pattern of commingling of escrow funds and conversion of client funds (see Matter of Pelsinger, 190 AD2d 158). In suspending the respondent, the First Department noted that he failed to cooperate with the investigation from its inception and failed to “offer a credible explanation for his conduct” (id. at 161). He was reinstated by the First Department on February 2, 1999.
Following his reinstatement in 1999, the respondent was the subject of multiple grievance complaints filed between 2006 and 2013, which resulted in the issuance of three Letters of Caution and four Admonitions.
Here
The respondent’s extensive disciplinary history,including a three-year suspension for similar misconduct, is a significant aggravating factor. Moreover, while the respondent indicated that he accepted responsibility, his expressions of remorse were perfunctory and less than genuine. When asked at the hearing for an explanation for the numerous checks he drew against his escrow account, made payable to himself, the respondent repeatedly could provide no explanation. The respondent engaged in conduct that was intentional and deceptive. Having willfully allowed a default judgment to be entered in the DiChiara action, the respondent moved to vacate the default judgment by submitting knowingly false statements to the District Court. In another instance, the respondent engaged in a conscious effort to ensure that a closing took place by a certain date. Knowing that he lacked sufficient funds to cover certain checks, the respondent instructed the payees not to cash the checks until sufficient funds were obtained. He once again engaged in a persistent pattern of escrow account violations. Rather than the result of inattention, as the respondent claims, the aforementioned conduct was knowing and purposeful. Notwithstanding the mitigating evidence presented, we conclude that under the totality of the circumstances, a disbarment is warranted. We further conclude that the respondent has not demonstrated that he should be diverted to a monitoring program at this stage of the proceeding.
In an unrelated matter, the court found extraordinary mitigation and imposed a public censure
In seeking leniency, the respondent asks that the Court take into consideration the following mitigating factors: he accepts full responsibility for his actions and is genuinely remorseful; during the period 2015 to 2016, he suffered from significant health issues, including a life-threatening infection that required surgery; his situation was exacerbated by other personal problems (an emergency office relocation and the need to care for his elderly mother, who suffered injuries as a result of a fall); he has undertaken remedial steps to prevent the recurrence of neglect by hiring additional staff, reducing his caseload, and investing in office equipment to better maintain communications with his clients; he possesses a stellar reputation in the Bar for his skills as a trial lawyer; he has for many years contributed significantly to the Bar by giving CLE lectures on a regular basis and sharing information in other types of forums, making him an asset to the legal community; and he has a reputation as a skilled and zealous advocate, to whom others refer difficult cases.
The respondent’s disciplinary history is an aggravating factor. We note, however, that the vast majority of the instances of the respondent’s past neglect consisted of a failure to keep his clients apprised of the status of their cases. Under the totality of the circumstances, including the extraordinary mitigation in this case, we find that a public censure is warranted.
(Mike Frisch)