Censure For Non-Venal Trust Account Violations

The New York Appellate Divsion for the First Judicial Department found sufficient mitigation to warrant a public censure of an attorney for non-venal misuse of his trust account, which came to light in an audit conducted after trust checks bounced.

The court:

At the hearing, respondent reiterated the specialized nature of his [education law] practice, noting that obtaining the necessary funding from the government to address the special needs of the children whose parents he represents is both complex and frustrating, requiring his advocacy. Respondent testified that his firm handles approximately 1,200 cases per year, 10-15 percent of which are handled pro bono. Respondent attributed the violations of the disciplinary rules charged to ignorance. With regard to misuse of his Trust Account, respondent testified that he had never taken any courses on the proper use of Trust Accounts and was simply employing the accounting practices he had employed since he opened his firm in 1981. With respect to advancing financial assistance to his clients, respondent testified that he was unaware that such practice was proscribed by the disciplinary rules. On this issue respondent stated that he only advanced sums to clients when a decision awarding them tuition had already been issued and would not be appealed. Moreover, respondent testified that he never charged interest to his clients on these advances and only engaged in this practice when his clients would be unable to send their children to school absent his financial assistance. Respondent expressed a great deal of remorse at having violated the disciplinary rules and testified that after being apprised of the charges against him by the Committee he retained ethics counsel and completely overhauled his firm's practices with regard to his Trust Account. Respondent further testified that he also hired an experienced bookkeeper to manage his Trust Account and keep the kinds of records required by the disciplinary rules. Since being apprised that advancing funds to clients is prohibited, respondent has not engaged in such behavior. Lastly, respondent noted that in his more than 30 years of practicing law, he had never been the subject of any professional discipline nor had his practices ever resulted in an inability to pay his clients all sums awarded to them.

The Referee also heard from three character witnesses. A former Associate Justice of the Appellate Division, Second Department, and a Justice of the Supreme Court, both testified that they had retained respondent to represent them and their respective children. Both Justices stated that respondent is known to be trustworthy, honest and a tremendously fine attorney, possessing great skill, integrity, and character. Carrie Catapano, head of West End Day School, also testified about respondent's character, noting that respondent is routinely regarded as being the best attorney in his field of practice, that parents and colleagues look to him for educational and legal advice, and that she routinely recommends him to parents who need the kind of legal advice in which respondent specializes. The Referee also reviewed six letters from respondent's former clients, all of whom were thankful for the representation they received and would recommend respondent to other parents of special needs children.

(Mike Frisch)