No, Not That One
The New York Appellate Division for the First Judicial Department ordered an interim suspension for an attorney’s inadequate responses to a bar investigation
In March 2019, the Committee commenced an investigation after the Lawyers’ Fund for Client Protection advised that, in September 2018, three checks totaling $16,458 issued from respondent’s IOLA account were dishonored due to insufficient funds. The Committee asked respondent to submit a written explanation as to why the checks at issue were dishonored and for him to produce specified bookkeeping records that he is obligated to maintain under New York Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.15(d)(1).
On November 1, 2019, respondent emailed an answer asserting that his bank erroneously reported to the Lawyers’ Fund that the IOLA checks at issue had been dishonored. Specifically, he claimed that his client, J.P., was to have received $16,458 in repayment of funds he loaned to a third party as an investment; however, he was purportedly concerned that as the memo on one of the three escrow checks at issue used the word “loan” but did not specify “investment return,” he would encounter tax issues. Therefore, in accordance with his client’s purported wishes, respondent claimed to have “canceled” the escrow checks and remitted $17,000 to J.P. via two bank cashier’s checks for $7,500 and $4,030, respectively, and the balance in cash.
Respondent’s answer included a photograph showing the fronts of two cashier checks made payable to J.P. and a bank envelope. In addition, respondent claimed that he canceled the checks at issue through a bank teller before they went through. As purported evidence of such, he included his September 2018 bank statement which showed no activity on his account for the month prior to September 21 and did not show the dishonored checks but which his bank nevertheless reported as having been presented on September 13 and returned because the account balance was “insufficient for payment.” Respondent’s answer did not include the complete bookkeeping records requested by the Committee.
He appeared for deposition and his testimony led to additional demands for information
Under 22 NYCRR 1240.9 (a), an attorney who is the subject of a Committee investigation may be suspended from the practice of law on an interim basis upon [*4]a finding that the attorney has engaged in conduct immediately threatening the public interest. A basis for such a finding includes an attorney’s failure to “comply with a lawful demand of the Court or a Committee in an investigation or proceeding” (22 NYCRR 1240.9 [a] [3]).
The Committee argues that respondent has repeatedly failed to comply with its lawful investigative demands made at his deposition, via letters and emails, and as directed by judicial subpoena (which directed him to produce his bookkeeping records for the six-month period preceding the dishonored escrow checks but, as noted, the Committee later requested additional records and documents), therefore, his interim suspension under 22 NYCRR 1240.9(a)(3) is warranted.
The attorney can request a post-suspension hearing. (Mike Frisch)