Friday, June 26, 2009

Gross Misjudgment

An attorney was suspended for five years by the New York Appellate Division for the Second Judicial Department for a number of ethical violations. He had, among other things, jointly represented a husband and wife in drafting a separation agreement and thereafter acted as the husband's lawyer in the ensuing divorce. There were also neglect and escrow violations. The court sets out its sanction analysis:

In determining an appropriate measure of discipline to impose, the Grievance Committee points out that the respondent's disciplinary history consists of three Letters of Caution, one dated April 22, 2004, and two dated March 15, 2004. Those matters involved neglect, failure to forward settlement funds to the complainant, and failure to maintain an escrow account in good order and to make the bank accountable for its errors and inconsistencies. The respondent failed to take the opportunity to request a hearing with respect to those letters and should not now be permitted to recast them in a way he would like them to be viewed.

By way of mitigation, the respondent submits that he was merely trying to help out Mr. and Mrs. Freedman, who had little or no liquid assets and who sought his help in terminating their marriage and resolving related issues. He asks the Court to view the Comis matter as a reflection of the inexperience of himself and his staff in maintaining records and tracking the status of a case. He asks the Court to also consider the nature of a small, one-attorney practice and his cooperation with the Grievance Committee.

While the respondent may not have converted Mr. and Mrs. Freedman's funds for his own benefit, he did convert their funds held in his escrow account by turning them over to Mr. Adler, another client. While law office failure may have played a role in the initial handling of the Comis matter, the respondent should not be permitted to rely on that excuse for providing a false document to the Grievance Committee.

The respondent's misconduct, which includes neglect of two legal matters, failing to safeguard funds entrusted to him in escrow, failing to properly identify his escrow account, and simultaneously representing parties with divergent interests, evinces gross misjudgment. Accordingly, he is suspended from the practice of law for a period of five years.

(MIke Frisch)


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