No Time For Dignity
An attorney’s effort to avoid interim suspension in an investigation of his escrow account fell on the deaf ears of the New York Appellate Division for the First Judicial Department
The AGC maintains that respondent’s repeated invasions of the $8,000 down payment constitutes conversion and/or misappropriation of third-party funds (including his disbursement of funds for the investigative and secretarial work on behalf of the seller-estate because the buyer never authorized the use of her funds to pay for these services), in addition to which he improperly made three cash withdrawals from his escrow account and engaged in commingling on at least two occasions. The AGC argues that respondent’s conversion and/or misappropriation of third-party funds evidences professional misconduct that immediately threatens the public interest for which his interim suspension is warranted.
In a letter dated July 26, 2019, respondent’s counsel states that “we do not object to granting the motion to the extent of ordering a hearing.” Accompanying this letter is an affirmation in opposition from respondent, who is 86-years-old. Respondent admits that he “failed to properly monitor [his] escrow account,” but argues that any suspension would be unnecessary and disproportionate because no client suffered a loss or even lodged a complaint. As to the $5,000 check issued against the escrow account and which invaded the down payment, respondent has no present recollection of who this payee is or why the check was issued. As to the fact that it drew against the buyer’s funds, he claims that he was entitled to substantial legal fees for work done on behalf of the seller-estate, and at the time the sale was canceled, he had sufficient funds on deposit in his escrow account to return the $8,000 down payment.
Respondent asks that this Court take into account his prior public service, his military service, and his community service; that the conduct at issue occurred in the midst of an acrimonious separation from his former law partner, who has brought litigation against respondent, the stress of which has affected his health (he cites to a medical diagnosis two years ago just before issuance of the dishonored check which triggered the AGC’s investigation); and that he has submitted letters from former clients attesting to the quality of his representation.
Respondent maintains that, as he has no pension, savings, or investments upon which he can rely, an interim suspension would leave him and his wife (who is unable to work due to health issues) without means of financial support. Furthermore, he is presently working on time sensitive legal matters with deadlines and statutes of limitations that are running. In light of the foregoing, respondent requests that no interim suspension be imposed and that he be granted a hearing, and advises that he “intend[s] to terminate [his] practice at the end of this year, and retire, hopefully with dignity, so that [he] can teach, write, or perform other services which enable [him] to support [his] family.”
Pursuant to 22 NYCRR 1240.9(a), this Court may suspend an attorney from the practice of law, “on an interim basis during the pendency of an investigation or proceeding on application or motion of a Committee … and upon a finding by the Court that the respondent has engaged in conduct immediately threatening the public interest.” The AGC relies on 1240.9(a)’s provisions that interim suspension may be based upon “(2) the respondent’s admission under oath to the commission of professional misconduct… or (5) other uncontroverted evidence of professional misconduct.”
That burden was met here. (Mike Frisch)