Not Enough Mitigation

Disbarment has been imposed by the New York Appellate Division for the Second Judicial Department.

The parties position

The respondent testified in mitigation that during the period of his misconduct, he experienced several personal hardships, including contentious and time-consuming divorce and custody proceedings that lasted more than three years, his arrest in the criminal matter, and his workload which included his legal practice as well as caring for his three children, two of whom have special needs. The respondent averred that these circumstances caused him significant stress and led him to neglect his responsibility to properly maintain his escrow records. The respondent stated that he no longer works with the same individuals who he represented at the time of his misconduct and that he no longer conducts short sales or deed transfers.

The Grievance Committee now moves to confirm the report of the Special Referee and to impose such discipline as this Court deems just and proper. The Grievance Committee reports that the respondent has a disciplinary history consisting of an April 2019 Letter of Advisement (escrow related), a January 2016 Admonition (escrow related), and a July 2013 Letter of Caution (failure to supervise a non-attorney). As noted by the Grievance Committee, the respondent was therefore on notice as early as 2016 that he was not properly fulfilling his fiduciary duties, and yet failed to sufficiently improve his escrow account management. The respondent has not submitted a response to the Grievance Committee’s motion.

The Court

In determining an appropriate measure of discipline, in mitigation we have considered the respondent’s challenging personal circumstances at the time of his misconduct, as well as the character evidence submitted and remedial measures taken. However, we have also considered that the respondent misappropriated at least $330,000 over at least two years, some of which was for his personal benefit. He also misrepresented to the Grievance Committee the nature of the Harari loan, claiming that it was for his client Zion, when in fact the respondent used at least $70,000 from the loan to remedy a shortfall in his escrow account. We are likewise troubled by the respondent’s failure to identify or account for the receipt and disbursement of more than $460,000 in client funds, demonstrating a lack of cooperation with the Grievance Committee’s investigation. Furthermore, on this record, the respondent has failed to repay all of the misappropriated funds. The respondent’s failure to account for his clients’ funds, his refusal to repay Harari, his contention that he did not personally benefit from his misconduct, and his claim that he did nothing wrong despite pleading guilty to a misdemeanor, among other factors, demonstrate a lack of accountability and remorse for his misconduct. Finally, we have considered the respondent’s ongoing disregard for his fiduciary duties, in light of his continued escrow violations following his 2016 Admonition.

Under the totality of the circumstances, we find that disbarment is warranted.

(Mike Frisch)