Should Have Known

A persistant failure to monitor a trust account led to misappropriation and a two-year suspension by the New York Appellate Division for the Second Judicial Department

The Special Referee considered that for virtually the entire time of his solo practice, approximately 21 years, the respondent “failed to maintain contemporaneous and accurate records of funds being deposited into and drawn out of his escrow account and he admitted that during the audit period under investigation, he was unable to identify what funds in the escrow account were retainer fees, legal fees or client funds.” Given his experience, the Special Referee further noted that the respondent “should have been aware and knowledgeable about the rules governing attorney trust accounts.”

In determining an appropriate measure of discipline to impose, we have considered the aggravating and mitigating factors. In aggravation, we note the respondent’s pattern of misconduct, his substantial experience in the practice of law, and his disciplinary record which is not unblemished, having received three Admonitions that were personally delivered and a Letter of Caution, though remote. We have also considered, in mitigation, his admission of wrongdoing, his expressed remorse, his lack of venal intent, the remedial measures he has implemented to institute proper bank and bookkeeping practices to avoid a reoccurrence, the character evidence presented, and his community service.

Under the totality of circumstances, we conclude that the respondent’s conduct warrants his suspension from the practice of law for a period of two years.

(Mike Frisch)