First Offense
Fifty years of discipline-free practice sufficiently mitigated escrow account violations to draw a public censure from the New York Appellate Division for the First Judicial Department
Respondent, who is currently 76 years old, and has practiced law for nearly 50 years without incident, has been managing his escrow account since he started his own firm in 2012. The charges against respondent arose from two escrow checks, which were issued by respondent in December 2019 and February 2020, being dishonored due to insufficient funds. However, nearly all respondent’s escrow related misconduct resulted from his own admitted failure to make accurate entries of transactions in his escrow account from January 2017 through February 2020 and his failure to reconcile the records of his transactions.
On separate occasions, respondent misappropriated funds entrusted to him as a fiduciary incident to his practice of law: on January 13, 2017, respondent issued a check to himself for legal fees which was paid against the escrow account, temporarily creating a shortage in the escrow account; between January 13, 2017 and March 7, 2017, respondent issued four checks to himself and co-counsel representing legal fees against the escrow account, thereby creating a temporary shortage in the escrow account; and on November 6, 2019, respondent issued a check to himself for legal fees which was paid against the escrow account, over disbursing the escrow account and creating a temporary shortage.
Respondent also commingled personal funds with funds entrusted to him as a fiduciary. On August 24 and September 14, 2018, respondent deposited settlement funds, representing legal fees and client trust funds, into the escrow account. As of January 3, 2019, earned legal fees relating to the August and September 2018 deposits still remained on deposit in the escrow account. Lastly, respondent made two cash withdrawals and issued two checks payable to cash against the escrow account.
Sanction
As it pertains to mitigation, the following factors have been considered: respondent had no prior disciplinary history in nearly 50 years of practicing law; respondent fully admitted his errors; respondent expressed remorse for his unintentional conduct; respondent took remedial action with respect to the management of his escrow account; respondent corrected all deficits; and there were no clients that lost money or filed a complaint. Although a recommendation as to the appropriate sanction was not provided in the Referee’s report or set forth in the AGC’s application, public censure is in accord with both this Court’s and the Second Department’s precedent involving similar misconduct and is appropriate even in light of the nonvenal nature of the conduct and factors in mitigation.
(Mike Frisch)