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Court: Supreme Court, Appellate Division, First Department, New York
Case: In the Matter of Peter H. Jacoby, a suspended attorney.
Dated: June 28, 2011
Discipline given: 36 month suspension.
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Queens Brooklyn Bronx accident injury lawyer)
Facts: Respondent was admitted to the practice of law in the State of New York by the First Judicial Department on May 12, 1975. Although he has not maintained an office for the practice of law in New York during the period relevant to this matter, he has maintained his registration with the New York bar. At the time of the events in question, respondent was employed by a telecommunications company as an in-house counsel in Washington, D.C., and resided in Virginia.
Comment: Note that even though he committed his offenses in Virginia and they were unrelated to the practice of law, he gets punished because we hold lawyers to a higher standard.
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FAKING HIS WAY TO THE TOP (Posted by Brooklyn accident lawyer Gary E. Rosenberg on January 31, 2008)
TAX LAWYER DISBARRED; THE DETAILS ARE JUICY, INDEED (Posted by Brooklyn accident lawyer Gary E. Rosenberg on February 16, 2008)
LAWYER SUSPENDED; GOOD LOVE GONE BAD (Posted by Brooklyn accident lawyer Gary E. Rosenberg on October 16, 2009)
ASSAULTING A FELLOW BAR PATRON COST THIS ATTORNEY HIS LICENSE (AND COST THE OTHER GUY HIS EYE) (Posted by Brooklyn accident lawyer Gary E. Rosenberg on February 3, 2010)
MUSIC TOO LOUD IN RESTAURANT; LAWYER SLUGS GIRL; GETS PUBLIC CENSURE (Posted by Brooklyn accident lawyer Gary E. Rosenberg on September 10, 2010)
By order entered October 6, 2009, this Court, upon the motion of the Departmental Disciplinary Committee: (1) determined that the Virginia felony of unlawful wounding, of which respondent was convicted in 2008, is a "serious crime" as defined by Judiciary Law § 90(4)(d) and 22 NYCRR 603.12; (2) based on the Virginia conviction, immediately suspended respondent from the practice of law pursuant to Judiciary Law § 90(4)(f); and (3) directed respondent to show cause before a Hearing Panel of the Committee, pursuant to Judiciary Law § 90(4)(g), why a final order of censure, suspension or disbarment should not be made against him.
On January 20, 2010, and February 17, 2010, proceedings in this matter were held before a Hearing Panel pursuant to our order of October 6, 2009. The sole issue before the Panel was the appropriate sanction to be imposed on respondent based on his 2008 conviction of a serious crime in another state. The Committee presented no witnesses. Respondent testified on his own behalf and presented the testimony of his psychiatrist.
The 2008 Virginia conviction giving rise to this proceeding was based on respondent's conduct in a domestic dispute with his wife in March of that year. The altercation culminated in respondent striking and restraining his wife, causing physical injuries to her that required medical attention. Respondent was arrested and subsequently pleaded guilty to the felony of unlawful wounding, in violation of Virginia Code § 18.2-51, for which he was sentenced to three years of incarceration with all but 12 months suspended, subject to certain conditions. Upon release from prison in February 2009, respondent was placed on probation until February 2011. An order of protection was also issued, which directed respondent to stay away from his wife and to make restitution to her in the amount of $2,283.43.
In its report dated June 14, 2010, the Hearing Panel noted the following as factors tending to mitigate respondent's culpability: (1) respondent's long and exemplary work record and attestation to his good character from colleagues; (2) the connection of respondent's misconduct to a dysfunctional marital relationship that is now coming to an end through divorce; (3) the initiation of the altercation by respondent's wife; (4) the causal connection between respondent's abusive conduct and his intermittent explosive syndrome, a recognized psychological condition for which he is being treated, and was being treated before the incident; (5) the confinement of respondent's physical aggression to his personal life; and (6) the substantial criminal sanctions, including a period of imprisonment, that have already been imposed on respondent.
At the same time it noted the foregoing mitigating factors, the Hearing Panel noted, as an aggravating factor, respondent's history of domestic violence before the March 2008 incident. In August 2005, based on a physical altercation with his wife that took place in March of that year, respondent pleaded guilty to the crime of simple assault in New Jersey, for which he was sentenced to one year of probation. As a result of that conviction, respondent (who is also a member of the New Jersey bar) was censured by the New Jersey Supreme Court (see In re Jacoby, 188 NJ 384, 908 A.2d 177 [2006] ), and, as a matter of reciprocal discipline, by this Court (see Matter of Jacoby, 42 AD3d 196 [2007] ). In addition, respondent informed the Hearing Panel of another instance in which he struck his wife, this one while they were on vacation in the Carribean in December 2007.
After the hearing, Committee staff argued that respondent should be disbarred, while respondent contended that a two-year suspension would be appropriate. In its report, the Hearing Panel majority, taking into account the mitigating and aggravating factors as set forth above, recommended that respondent receive a suspension of 30 months effective as of October 6, 2009, the date his interim suspension commenced. The dissenting panel member opined that the suspension should terminate at the same time as respondent's probation, in February 2011.
The Committee now seeks an order confirming the findings of fact and conclusions of law of the Hearing Panel in this matter and suspending respondent from the practice of law for not less than 30 months effective the date of this Court's interim suspension order. Respondent cross moves to confirm the Hearing Panel's report as to the recommended sanction and as to most of the findings of fact and conclusions of law but to disaffirm certain findings and conclusions. We now grant the Committee's motion, affirming only in part the Panel's findings of fact and conclusions of law and -- notwithstanding that the Hearing Panel recommended only a 30-month suspension -- suspend respondent from the practice of law for 36 months with effect from the commencement of his interim suspension.
We find, in the exercise of our discretion, that respondent should be suspended for 36 months in view of the gravity of the offense of domestic violence and his prior history of similar misconduct. While respondent may not have engaged in physical aggression in his professional life, it cannot be overemphasized that his abuse of his spouse reflects adversely on his fitness to practice law.
We have considered and rejected the request in respondent's cross motion that we disaffirm certain portions of the Hearing Panel's report.
Accordingly, the Committee's motion should be granted, the Hearing Panel's findings of fact and conclusions of law affirmed in part, and respondent suspended from the practice for a period of 36 months effective October 6, 2009, and until further order of this Court, and respondent's cross motion should be denied to the extent it seeks to confirm the Hearing Panel's recommended sanction and to disaffirm certain portions of the Hearing Panel's report.
Case: In the Matter of Cory J. Covert (attorney discipline)
Court: Supreme Court, Appellate Division, Second Department, New York
Punishment: Six month suspension of law license
Date: May 31, 2011
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Brooklyn accident injury attorney)
RELATED POSTS:
NEW YORK ACCIDENT LAWYER SUSPENDED FOR SLOPPY ESCROW BANKING (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on May 4, 2011)
ATTORNEY USES ESCROW ACCOUNT TO HIDE MONEY FROM TAX AUTHORITIES (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on February 17, 2010)
LAWYER SUSPENDED; GOOD LOVE GONE BAD (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on October 16, 2009)
TAKES NERVE TO BE A GAMBLER; TAKES BIGGER NERVE TO BLAME YOUR GAMBLING ON OTHERS (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on March 9, 2008)
LAWYER ADMITS MESSING WITH CLIENT MONEY; RESIGNS FROM BAR (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on January 11, 2008)
The Grievance Committee charged this attorney with five counts of professional misconduct.
Charge one alleges that the attorney violated his fiduciary obligations by failing to preserve escrow funds entrusted to him
In March 2006, clients hired the attorney to represent them in a house purchase in Suffolk County, New York. To free up some money to buy the house, the clients refinanced the mortgage on their current residence. They applied to Chase Bank for a $310,000 mortgage loan and a $98,000 home equity loan.
The attorney represented them at their closing for the refinance in July, 2006. The attorney sent to the closing by Chase Bank gave the attorney a check for $187,863.90, payable to attorney's escrow bank account.
The clients let the attorney put the money into his escrow plus an additional $48,483 in cash and other checks, for the total of $236,346.90 to be used towards the buying the house they wanted.
In August 2006 the attorney handled the clients' house purchase. At the closing, he drew five checks against his escrow IOLA account, totaling $230,732.16, to disburse funds he was holding for the clients in order to close the deal. At the end of the closing, the attorney gave on eof the buyers a check for $99,656.66.
By disbursing funds totaling $330.388.82 against his escrow account when he was only holding $236,346.90 on account, the attorney overdisbursed the account by $94,041.92. All checks presented by the respondent in connection with the purchase transaction were honored when presented for payment between August 10 and August 14, 2006. The overdisbursement was paid against funds being held on behalf of at least two other clients' funds on deposit in the escrow bank account at the time. Accordingly, the attorney failed to preserve funds entrusted to him as a fiduciary.
Charge two alleges that the attorney engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation by submitting a false statement to the Grievance Committee in its investigation.
On or about November 30, 2006, a check drawn by the attorney against his escrow bank account, which was unrelated to the three matters for which he held funds, was dishonored when presented for payment due to insufficient funds. Upon learning that the check was dishonored, the attorney discovered the mistake he had made months earlier at the purchase transaction.
On or about December 4 and December 5, 2006, the attorney deposited into the escrow bank account $50,000 and $25,000 in personal funds, respectively, to partially replenish the deficiency and prevent additional checks from being dishonored.
In a letter dated January 24, 2007, the Grievance Committee advised the attorney that he was the subject of a sua sponte complaint and investigation based upon notification from the Lawyers' Fund for Client Protection, dated December 29, 2006, of the dishonored check. The attorney was asked to explain.
The attorney submitted an answer in May 2007 but did not disclose the mistake he made in the clients' purchase transaction in August 2006. The attorney also did not disclose to the Grievance Committee that on or about December 4 and December 5, 2006, he had deposited $75,000 in personal funds to partially replenish the account or that as of the date of his answer, the IOLA account was still deficient by approximately $19,041.92, the difference between the $94,041.92 deficiency caused by his mistake and the $75,000 in personal funds he deposited.
In his answer, the attorney represented that the check was dishonored because in November 2006, in an unidentified transaction, he had issued a check without waiting a sufficient time for the corresponding deposit to clear and to become available for disbursement.
The explanation the attorney provided for the dishonored check was false and misleading in that he knew that the actual cause of the deficiency was the mistake he had made in the purchase transaction.
Charge three alleges that the attorney engaged in conduct prejudicial to the administration of justice by submitting a false statement to the Grievance Committee in its investigation
Charge four alleges that the attorney violated his fiduciary duty by failing to maintain required bank and bookkeeping records for the escrow bank account
Charge five alleges that the attorney engaged in conduct adversely reflecting on his fitness as a lawyer by engaging in any of the foregoing misconduct.
Based on the evidence adduced and the attorney's admissions, the Special Referee properly sustained all five charges. Accordingly, both the Grievance Committee's motion to confirm the Special Referee's report and the attorney's motion to confirm are granted.
In mitigation, the attorney offered his medical condition of Attention Deficit Disorder, which he shares with two of his children and which hampers his ability to focus on bookkeeping and financial details. A heart condition and recurrent atrial fibrillation preclude him from taking medication for that disorder. Upon becoming aware of the first error, the attorney hired a certified public accountant to conduct an audit of his accounts. The accountant set up a new accounting system which has been put in place.
The Grievance Committee notes that except for his initially misleading explanation for the dishonored check, the attorney has been cooperative and contrite. The Grievance Committee further notes that the attorney did not personally benefit from this matter and took prompt, albeit awkward, steps to rectify the mistake.
The attorney's disciplinary history consists of a Letter of Caution issued on February 24, 2006.
In view of the mitigating evidence advanced and the fact that the attorney was the sole person injured by his error, we find that the attorney's professional misconduct warrants a suspension from the practice of law for a period of six months.
Court: Supreme Court, Appellate Division, Second Department, New York.
Case: Mose v. Sangiovanni
Date: May 17, 2011.
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Brooklyn accident injury lawyer)
Comment: A tough loss for the injured accident victim, but you'll see how this could happen if your accident lawyer is not super experienced and extra careful.
Accident plaintiff loses and case dismissed because case is barred by the three-year statute of limitations.
RELATED POSTS:
TAKE A WITNESS AFFIDAVIT INSTEAD OF A STATEMENT (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on January 5, 2008)
REAL ESTATE ATTORNEY DISBARRED; HE FEE-SPLIT WITH NON-LAWYERS IN PERSONAL INJURY CASES (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on March 1, 2008)
WHAT IS A DEPOSITION? (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on April 9, 2008)
ACCEPTING $2,500 COST THIS INJURED PLAINTIFF A SHOT AT $75,000 (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on September 28, 2009)
AFTER A CAR CRASH: CAN I HANDLE MY INJURY CLAIM MYSELF? (A FREQUENTLY ASKED QUESTION) (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on January 3, 2010)
This action arises out of a motor vehicle accident that occurred on July 4, 2006.
The case started as an uninsured motorist accident claim. The accident victim exercised his right under his insurance policy and on July 23, 2008, demanded uninsured motorist arbitration from his insurance carrier, Allstate.
Allstate went to court to stop the arbitration. Allstate submitted papers showing that the Chevrolet pickup truck that he had the accident with was covered by insurance - if true, the injured accident victim could not collect from Allstate. He would have to go against the pickup truck and its insurance.
On December 2, 2008, the lower court granted Allstate's petition for an order staying (freezing) the arbitration and ordered a hearing to determine whether the pickup truck had insurance.
Then the lawyer for the accident victim (Mose) messed up, because he or she did nothing. The lawyer should have started a lawsuit against the pickup truck's owner and driver as a "just in case" for what happened next.
On July 30, 2009, the date the hearing was supposed to take place, the pickup truck's insurance company admitted that it insured the pickup truck. And this is when, most likely, the injured plaintiff's lawyer realized he or she had a problem.
That lawyer tried to make a deal in court. The plaintiff's counsel stated that the plaintiff would withdraw his demand for arbitration if the court would rule that the three-year statute of limitations in would be tolled (frozen) during the period that the lower stayed the arbitration pending the hearing - this way, the accident victim's lawyer figured, the three-year time limit to sue would not be blown.
Without any further argument, the lower court (probably figuring why not? And giving the accident victim's lawyer a break) ruled that the statute of limitations was tolled from the initial date of the stay of arbitration until July 30, 2009.
On July 31, 2009, the plaintiff commenced a regular lawsuit for personal injuries (this one) against the pickup truck's owner and driver. The defendants moved to dismiss the complaint pursuant to CPLR 3211(a)(5) on the ground that it was barred by the three-year statute of limitations and won.
The appeals court writes:
"Contrary to the plaintiff's contention, the Supreme Court's finding in the CPLR article 75 proceeding that the statute of limitations was tolled is not binding on the defendants in this action. "Collateral estoppel, or issue preclusion, 'precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party ... whether or not the tribunals or causes of action are the same' "
"The doctrine applies if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the [party] had a full and fair opportunity to litigate the issue in the earlier action"
The doctrine of collateral estoppel is inapplicable here because the Supreme Court's finding that the statute of limitations was tolled was a gratuitous finding that was not material to a determination of the CPLR article 75 proceeding
Case: In the Matter of Marshall Posner, an attorney and counselor-at-law
Court: Supreme Court, Appellate Division, First Department, New York.
Decided: May 24, 2011
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Brooklyn accident injury lawyer)
Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department. Respondent, Marshall Posner, was admitted to the Bar of the State of New York at a Term of the Appellate Division of the Supreme Court for the Second Judicial Department on April 13, 1983.
Respondent Marshall Posner was admitted to the practice of law in the State of New York by the Second Judicial Department on April 13, 1983. At all times relevant to this proceeding, respondent has maintained a law office within the First Judicial Department.
On August 4, 2009, the Departmental Disciplinary Committee filed 14 formal charges against respondent because of several actions that took place in May and June of 2006. In a report dated January 22, 2010, a Referee sustained 13 of the charges and recommended a one-year suspension. A Hearing Panel heard oral argument, and in a report dated April 19, 2010, modified the sanction recommendation to an 18-month suspension. The Departmental Disciplinary Committee now moves to confirm the Hearing Panel's determination and seeks a suspension of no less than 18-months. Respondent cross moves urging a public censure. We find a one-year suspension to be appropriate.
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LAWYER ADMITS MESSING WITH CLIENT MONEY; RESIGNS FROM BAR (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on January 11, 2008)
TAKES NERVE TO BE A GAMBLER; TAKES BIGGER NERVE TO BLAME YOUR GAMBLING ON OTHERS (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on March 9, 2008)
LAWYER SUSPENDED; GOOD LOVE GONE BAD (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on October 16, 2009)
SICK AND TIRED OF HEARING ABOUT ATTORNEYS WHO FALSIFY DOCUMENTS (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on December 25, 2009)
ATTORNEY LOSES LICENSE (DISBARRED) FOR STEALING FROM BRAIN-DAMAGED CLIENT (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on December 29, 2010)
The 14 charges against the attorney misappropriation of funds, conversion of funds and forgery, failing to preserve documents, conduct prejudicial to the administration of justice, conduct adversely reflecting on his fitness as an attorney. Of these, 13 were sustained by the Referee who heard the matter.
The three matters that formed the basis of the charges against the lawyer are described below.
The lawyer made three withdrawals from his firm's escrow bank accounts totaling almost $18,000 which represented the firm's legal fees in three accident cases. When he made those withdrawals, the settlement funds had not yet been deposited into his escrow bank account, although all of the deposits were made within one to two weeks. However, the escrow funds belonged to other clients at the time the withdrawals were made. The Referee found that the attorney misappropriated funds, but not intentionally, failed to preserve his files for seven years as required, and failed to file closing statements with OCA.
Second, the lawyer forged the signature and then notarized the forged signature of a client, with whom he had lost contact, on two releases that were filed with the court in order to obtain a settlement in a personal injury case. The attorney then endorsed two settlement checks with the client's signature and deposited them into his lawyer escrow bank account. He also drafted stipulations of discontinuance by which he falsely represented to the opposing attorneys that the case had been settled with the permission of his client.
The client in the above matter had not responded to numerous letters and telephone calls for a period of two years during which time he had been ordered to attend a deposition. Although the client had not been cooperative or even available, two defendants made substantial offers, one of which was specifically time limited. The client had previously indicated a willingness to accept a sum that was less than that offered ($119,000). However, when he resurfaced some six months later, the client decided that the settlement was not adequate. He refused the amount, not understanding that the matter had been settled. The Referee found that the attorney attempted to "settle" the matter with his client after the client filed the disciplinary complaint against him to be an aggravating factor, but we find the record to be unclear in this regard. However, there is no issue that the forgeries violated lawyer disciplinary rules.
The third matter which the Referee sustained a charge for involved failure to provide a client with a written letter of engagement.
The lawyer urges, in mitigation, that he had an otherwise unblemished 27-year career, and that the two major transgressions occurred within a six-week to two-month period during which time his 16-year-old law partnership was breaking up and he was dealing with his mother's terminal illness. Consistent with the Referee's findings, we find the lawyer's were not solely motivated by self interest. Personal distractions and concern for his client played a role.
Comment: Lawyer got away light for forgeries which, I believe, were also criminal violations.
In the Matter of Francis B. Mann, Jr., an attorney and counselor-at-law.
Admitted to Bar: Attorney Man was admitted to the Bar on May 27, 1981.
Discipline imposed: Two year suspension of law license
Date of decision: April 26, 2011
Case brought by: Grievance Committee for the Ninth Judicial District, petitioner;
Court: Supreme Court, Appellate Division, Second Department, Brooklyn, New York
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; Serving Brooklyn Queens Bronx; Brooklyn Accident Injury Lawyer)
10 CHARGES OF PROFESSIONAL MISCONDUCT BROUGHT AGAINST THIS ACCIDENT LAWYER.
After a preliminary conference on March 29, 2010, and a hearing on June 3, 2010, the Special Referee sustained all 10 charges.
Charge one alleges that the respondent attorney took escrow money when he shouldn't have. He settled a client's car accident case in 2006 and agreed with two of her doctors to hold in escrow $5,000 from the settlement until the resolution of a No-Fault claim. The doctors agreed to take the $5,000 if the No-Fault claim lost, otherwise they would accept whatever amount was awarded to them.
While this lawyer was supposed to hold the $5,000 (from the accident settlement in his escrow bank account), he took the money for his own use. [Dear Readers, This is a big "no, no."] The lawyer admitted this charge, saying that he needed the money - which, of course, is no excuse.
Charge two alleges that the respondent attorney failed to properly title and identify his escrow account.
Dear Readers, this is kind of an easy one. Escrow money doesn't belong to the lawyer. Bank paperwork for a lawyer escrow account must have printed on it: "Attorney Special Account," "Attorney Trust Account," or "Attorney Escrow Account." This is pretty basic stuff.
Charge three alleges that the respondent attorney took a different (second) client's escrow money. Although this attorney deposited a $25,000 settlement check, and was required to hold the settlement proceeds in his escrow account, the balance on the account on September 5, 2008, fell to a low of $42.50.
Charge four alleges that the respondent lawyer ripped off his brother-in-law by giving him a $5,000 escrow check that bounced, to repay part of a $10,000 personal loan made to him by his brother-in-law. Dear Readers, attorney escrow checks are NEVER supposed to bounce!
Charge five alleges that the respondent attorney mixed personal funds with escrow funds. On or about March 17, 2007, he deposited $3,040 into his escrow account; $3,000, was a personal loan from his sister-in-law to cover general business expenses. The respondent could not recall the source of the remaining $40, which was in cash. During the 30 days following the deposit, he took all the funds for himself.
Charge six alleges that the respondent attorney is guilty of disbursing escrow checks made payable to "cash" instead of a named payee. Dear Readers, this is another well-known "no, no."
Charge seven alleges that the respondent lawyer mixed earned legal fees, which are personal funds, with funds he was holding for the benefit of others (escrow money) incident to his practice of law.
Charge eight alleges that the respondent attorney failed to account for funds transferred from his escrow account to his business account.
Charge nine alleges that the respondent attorney again failed to account for funds being disbursed from his escrow account - from March 2008 through October 2008, he paid a total of $25,811.67 from his escrow bank account himself or his law firm. He testified that the funds represented fees and disbursements, but he could not identify the name of the client matter to which the transfers related.
Charge ten alleges that the respondent is guilty of engaging in conduct that adversely reflected on his fitness to practice law by failing to pay two judgments related to his practice of law.
One judgment, entered on January 9, 2009, in the amount of $992.20, relates to invoices for video services provided to the respondent's law firm in 2007. The second judgment, entered on April 22, 2009, in the amount of $2,982.77, is related to reporting services provided to the respondent's law firm in December 2006 and March, April, and June 2007.
HOLDING:
"Based on the evidence adduced and the respondent's admissions, we find that the Special Referee properly sustained all 10 charges."
The lawyer gets a two-year suspension of his law license.
Comment: He got off easily. Most lawyers get disbarred (lose their law license) `for messing up with escrow money. But it seems that this attorney was just dumb and didn't know the simplest rules of escrow bank account bookkeeping and things like having "attorney escrow account" printed on his paperwork and NOT making out checks to "cash." Most likely, he didn't get a more severe penalty because he didn't actually chest or steal from any of his clients. Still, sloppy records keeping put him out of the law business foe two years. This stuff is taken seriously by the Powers That Be.
Hire your attorney carefully.
RELATED POSTS:
ATTORNEY USES ESCROW ACCOUNT TO HIDE MONEY FROM TAX AUTHORITIES (Posted by Brooklyn Accident Injury Lawyer Gary E. Rosenberg on February 17, 2010)
LAWYER SUSPENDED; GOOD LOVE GONE BAD (Posted by Brooklyn Accident Injury Lawyer Gary E. Rosenberg on October 16, 2009)
LAWYER CAN'T STOP PRACTICING, EVEN AFTER THE JUDGES TELL HIM TO STOP (Posted by Brooklyn Accident Injury Lawyer Gary E. Rosenberg on January 19, 2009)
FAKING HIS WAY TO THE TOP (Posted by Brooklyn Accident Injury Lawyer Gary E. Rosenberg on January 31, 2008)
FORMER LEGISLATOR CONTINUES FALL FROM GRACE (Posted by Brooklyn Accident Injury Lawyer Gary E. Rosenberg on February 1, 2008)
ATTORNEY JOSEPH LEVINE ARRESTED FOR STEALING FROM CLIENTS (Posted by Brooklyn Accident Injury Lawyer Gary E. Rosenberg on December 15, 2007)
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Queens injury lawyer)
Matter of Norman L. Cousins
First Dept.
Admitted to Bar: 1969
Discipline imposed: Disbarment effective on November 18, 2010.
Lawyer Cousins is disbarred for screwing a brain-damaged client, Kevin Veneski. Cousins was hired in 1997 to sue for medical malpractice on Veneski's behalf.
From the very beginning, this lawyer did dirty.
When he was hired, he had his clients (husband and wife) sign a "litigation financing agreement" under which the expenses fronted by Cousins would be charged to the clients at 15% annual interest. While this may, arguably, be ethical, Cousins was dealing with a brain-damaged client who was not in a position to negotiate the terms of Cousins' retainer.
To finance Veneski's case Cousins then borrowed money (hundreds of thousand of dollars) from various litigation funding companies, pledging some of the same collateral to both entities - another no-no.
Cousins does a good job, winning a jury verdict of over $4 Million for his clients.
On February 26, 2000 he has the brain-damaged Mr. Veneski sign an affidavit supporting Cousins in seeking permission from a judge to take an extra attorney fee (extra pay) for his work.
Cousins does nothing at all with this affidavit, not seeking court approval for an attorney fee increase, for six years (until 2006).
The jury verdict not being the end of the case, the malpractice action was settled in November 2002 for $3 Million plus an annuity (future payments) that would give Veneski $750,000 over 20 years.
In December 2002 Cousins tells his client (Veneski) that the settlement money is expected, and calculated his own attorney fee to overpay himself.
The malpractice defendants' main insurance carrier closed and Cousins told the New York State agency that took over the settlement his attorney's fee on the next settlement payment was $212,500. However, in October 2003 Cousins wrote to his client (Mr. Veneski) that he was owed more than $450,000.
After receiving the payment, Mr. Veneski gave Cousins a check for $454,450.55. On the memo line of the check Cousins had Veneski cross out the words "attorneys fees" he had written on the memo line, and substitute the word "gift." At the same meeting, Mr. Veneski signed a gift tax return in blank, which he sent to his accountant to fill in.
When Cousins received the first annuity (settlement) payment of $20,000 in October 2005, he wrote to Mr. Veneski that he was applying it to disbursements and interest.
Meanwhile, in July 2003, lawsuits broke out between the funding companies that lent money to Cousins and/or Veneski. One funding company claimed that when Mr. Veneski signed the February 26, 2000 affidavit supporting a potential application for increased attorney's fees, Cousins was committing fraud to persuade that company to make the loan.
In December 2003 one funding company got the $212,500 fee claimed by Cousins.
Other lawsuits by funding companies were resolved upon Cousin's payment of $340,000.
Finally, on February 1, 2006, Cousins filed a motion in the Veneski action for an increased fee. The Veneskis (with a new attorney) cross-moved for an order finding that Cousins owed them $1,231,061.89.
On January 30, 2007, New York Supreme Court Justice Heitler determined that Cousins had over billed and received an excess fee without court approval. Cousins tried to argue that Veneski had given him the extra money a gift, but the Court pointed out that a brain damaged client should have had an independent attorney to represent him in making such a gift.
On May 21, 2008, Justice Heitler found that Cousins overcharged $56,924.06 in disbursements and ordered him to return that money, plus excessive attorney's fees of $508,229.70, with interest, and judgment was entered against Cousins on January 7, 2009, in the amount of $619,538.25.
In the face of disciplinary charges, Cousins maintained that he accepted a gift given by Mr. Veneski to extricate the Veneskis from a funding company lawsuit and that any claim of duress or undue influence was vitiated by Mr. Veneski reaffirming the gift multiple times over the ensuing years while represented by other counsel.
On November 24, 2009, a court-appointed Referee submitted his report and recommended disbarment. The Referee found "incredible" Cousins' testimony that Mr. Veneski intended to make a gift of $454,000, or that Cousins believed in good faith that it was a gift. In addition to the fact that Justice Heitler had also rejected Cousins' claim as "incredible," the Referee based his conclusion on several factors, including that at the time each installment of the settlement payment was due, Cousins wrote to Mr. Veneski that he was "owed" one-third of the amounts as "attorney's fees"; Mr. Veneski originally wrote "attorneys fees" on the memo line of the $454,000 check and only wrote "gift" at Cousins' request; nothing in the relationship between Mr. Veneski and Cousins would explain a gift of that amount; Cousins did not "take any of the precautions one would expect a lawyer to take when accepting a 'gift' of this magnitude from a client in circumstances such as this"; and Cousins' belated motion for increased legal fees was inconsistent with his claim that he had received such a substantial gift.
The Court holds: Disbarment is the appropriate sanction. Cousins charged a brain-damaged client over $500,000 more than the statutory maximum in attorney's fees. He tried to disguise those fees as a gift, and deceived his client to secure his assistance in the charade. Cousins has yet to satisfy the judgment directing him to return those fees and the over-billed disbursements, and he has a pending petition for Chapter 7 Bankruptcy relief.
The Court points out that: "The Referee, who had an opportunity to observe Cousins, found him to be deficient in honesty, remorse, and insight."
Comment: The Court mentions but does not discuss Cousins' bankruptcy filing. Cousins' bankruptcy means that Veneski is probably not getting back all of the more than $600,000 that Cousins owes him. And with Cousins disbarred, it does not seem likely that he could earn the money to repay Veneski. So I wonder, if Cousins hadn't filed for bankruptcy might the Court have let him keep working so he could pay back Veneski? Or if Cousins had paid the judgment to Veneski right away, might Cousins have been permitted to keep his law license as a sort-of-reward? I wonder.
Matter of William B. Caits
First Dept.
Admitted to Bar: 1975
Discipline imposed: public censure
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Queens Injury Lawyer)
Interesting decision reported on August 31, 2010 coming from the Appellate Division, First Department - which covers Manhattan and the Bronx. But this lawyer's bad act happened in a restaurant in Queens. The Court's decision does not give the name of the restaurant.
You know, for a while now I've been writing these blawgs on naughty things lawyers do to get into disciplinary trouble. What badness did the lawyer engage in that got them caught, and put at risk their law license - their means of earning a living?
Sometimes the stories are sad. A drug-addicted lawyer steals from a client. Or greed made them steal. But it's not only stealing that can lose a lawyer his or her license in disbarment. Any felony conviction means automatic disbarment, and misdemeanor convictions can lead to disbarment, to, or lesser penalties such as a law license suspension for months or years, or a slap on the risk, such as with a public or private censure.
Some of my fellow lawyers I feel sorry for, like the drunk driver lawyer who doesn't hurt anyone but is convicted and pays a criminal penalty, and then, maybe, receives a law license suspension and can't support a family.
But one constant applies to me across the universe of disciplinary cases and stupid stuff lawyers do. I never see myself in those decisions or, more specifically, I don't see myself doing the dumb stuff that jeopardizes some lawyers' license to practice law. Oh, maybe I could misplace a file and mess up by blowing a client's case deadline - a rather forgivable disciplinary offense; because it's stealing client money that is the great disciplinary no-no. And that is guaranteed to cost a lawyer his or her law license 100% of the time.
Now to the attorney disciplinary case that is today's subject: William B. Caits. Caits was admitted to the Bar in 1975, so if he was, for argument's sake, 25 years-old when he became a lawyer, today he's about 60 years-old.
So attorney Caits, who's around 60 years-old, walks into a Queens restaurant. Maybe a diner or what have you. And he's with his wife and child. So far, so good.
Caits is disturbed by noise emanating from a portable DVD player in a nearby booth, occupied by a female patron and her father. So Caits asks the girl to turn down the music. She doesn't turn the music down low enough to suit Caits, who next complains to the restaurant manager.
The manager suggests that Caits and his family sit somewhere else in the restaurant.
No maybe Caits was less than thrilled with that suggestion and maybe not. Perhaps the manager offered Cats and his family some free dessert items, or maybe the manager didn't do so, but should have.
We're not sure exactly what happened next, but the decision says, "the verbal altercation escalated, culminating with respondent [Caits] punching the victim." What really happened? I bet that the girl got "mouthy" with Caits in front of his wife and child. Maybe the girl's father did nothing or got mouthy too. Maybe Caits was subjected to insults. Caits appeared to have an attack of Machismo. So he slugged the girl.
Here's what's disturbing to me, Dear Readers. If I was in a restaurant with my family and some "girl" wouldn't lower her music so as not to disturb my family meal, and if she got "mouthy,' I would have hit her too. Or took the music machine and thrown it and, maybe, also jumped up and down on it. Or something. But man, I would have lost it! So, there but for the Grace of God, go I.
On April 6, 2007, following a bench trial in Queens County Criminal Court, Caits was convicted of attempted assault in the third degree (Penal Law § 110/120.00[1] [intent to cause physical injury] ) and harassment in the second degree (Penal Law § 240.26). Both crimes are misdemeanors. The court sentenced Caits to a conditional discharge, $300 fine, and 12-week anger management program. Caits did not appeal, and satisfied all the terms of his sentence.
Whenever a lawyer is convicted of a crime, the disciplinary authorities have to consider disciplinary punishment.
The Appellate Division is not too happy with lawyer Caits, noting that he lied during both his criminal trial and disciplinary hearing testimony: when he said that he did not strike the woman twice and that he did not intend to cause injury.
On the "plus" side, Caits has a record of practicing law for 38 years with an unblemished disciplinary record, presented numerous attestations as to his integrity and good character, and served in the armed forces.
The Appellate Division concluded, "we find the mitigating factors vastly more compelling insofar as the instant misconduct was aberrational and was not indicative of his interpersonal relationship in the course of legal representation."
The penalty: Caits was publicly censured. Which is the Court's way of saying, "Don't do that again."
Caits got lucky. He probably should have just changed his table or left the restaurant. Or just grabbed and "beat up" the music player and not the person operating it.
Matter of Richard M. Garbarini
First Dept.
Admitted to Bar: 1999
Discipline imposed: Public censure
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Brooklyn accident lawyer)
Professional disciplinary charges against this attorney seem to be for his being a dumbass. He falsified a resume and gave a phony writing sample at a lawyer job interview. Also, on his 1999 application to become an attorney, he hid a 1996 DUI conviction.
Attorney Garbarini's defense is that he was drunk and stoned for years. He gave many reasons for this, which don't need repeating. The main point is that attorney Garabrini presented himself to the Disciplinary authorities three-years clean and sober, working at a law firm that knew about his past and supported him.
Now we turn to the question of how to punish this naughty New York lawyer, which gets interesting.
At the first rung of the disciplinary ladder, the Referee who heard the facts recommends a fairly light penalty of "public censure." This means the world is told what the offending attorney did, but there's no further punishment and, oh yeah, don't do it again. The Referee reported that a suspension of Garabrini's law license was not necessary and could derail this young attorney's recovery from drugs and alcohol. Most importantly, no clients were hurt by this attorney; no money stolen.
Next (second) rung up the disciplinary ladder, the Hearing Panel agrees with the Referee but wants a heavier sanction against attorney Garbarini - a nine month suspension of his law license.
The third rung up the ladder, the Departmental Disciplinary Committee, takes this entire matter before the Court, the Appellate Division - which licensed this attorney and can giveth and taketh away. The recommended penalties keep increasing here, and the Disciplinary Committee asks the Appellate Division to visit upon Garbarini a weightier punishment than that recommended by the Hearing Panel: one year suspension of his law license.
At the top of the attorney disciplinary ladder is the Appellate Division, the "decider." Common sense prevails and this attorney is forgiven the foibles of his youth and given a public censure only and a second chance. And this is good and proper and correct and as it should be.
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Bronx accident lawyer)
Matter of Emmanuel Roy
First Dept.
Admitted to Bar: 2001
Discipline imposed: Attorney resigned from (quit) the bar, giving up his law license; his resignation accepted by the Court on 2/18/2010 nunc pro tunc (retroactive) to 11/30/2009.
This naughty lawyer case starts with juicy press coverage and an FBI press release on October 15, 2009.
FBI "Operation Bad Deeds" charged 41 defendants in New York, Pennsylvania, Ohio, and North Carolina - including six lawyers, three mortgage brokers, and seven loan officers - with fraudulently obtaining $64 million in home mortgages on more than 100 properties in eight separate cases.
Attorney Roy was only named in one of the cases: United States v. Danny Siony, et al. In Siony, four defendants were charged in a twelve-count indictment involving over $6.8 million in allegedly fraudulent home mortgage loans obtained through a mortgage brokerage firm called Joshua Funding Corp.
Lawyer Roy and others allegedly recruited "straw" (fake) buyers for properties won at foreclosure and other types of auctions. Home mortgage loans were obtained by submitting falsified documents and earnings statements, and phony title reports and contracts of sale.
The criminal defendants told their lenders that a company controlled by one of the defendants. named Australian Open. was selling the properties to the straw buyers (at inflated prices), when Australian Open did not hold title to the properties at that time and, in most instances, never held title to the properties at all.
Once the defendants had obtained home mortgage loans for the straw buyers based on the inflated price, the loan proceeds were used to pay off the auction price, the properties transferred to the straw buyers, and the rest of the money split among the defendants.
Attorney Roy was paid to represent some of the straw buyers at New York real estate closings and obtained a power of attorney for at least one of the straw buyers he recruited to the scheme and signed documents on the straw buyer's behalf.
Layer Roy resigned his law license before he could be disbarred. The Appellate Division (higher court) noted:
In June 2009, the Departmental Disciplinary Committee charged respondent with 38 charges, covering six matters, including two unrelated real estate transactions in which he represented the seller. In the first real estate matter, respondent inflated the sale price to obtain a higher mortgage and pocketed the excess. In the second, he allegedly converted client escrow funds.
After his arrest, lawyer Roy tried to stop the attorney disciplinary process until the Federal prosecution against him ended, but he was denied.
After a disciplinary hearing on November 10, 2009, rather than face the lawyer disciplinary authorities, attorney Roy resigned.
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Bronx injury lawyer)
Matter of Francis X. Morrissey
First Dept.
Admitted to Bar: 1973
Discipline imposed: Automatic disbarment because of criminal conviction of a felony.
On February 18, 2010 The First Department issued its ruling.
On October 8, 2009, following a jury trial in Supreme Court, New York County, attorney Morrissey was found guilty of scheme to defraud in the first degree, conspiracy in the fourth degree, and forgery in the second degree, all felonies, as well as conspiracy in the fifth degree, a class A misdemeanor. On December 21, 2009, he was sentenced to a cumulative term of imprisonment of 1 to 3 years.
Lawyer Morrissey's conviction arose out of his participation in a scheme to defraud Brooke Astor. Morrissey, with the assistance of Brooke Astor's son, Anthony Marshall, looted Ms. Astor's estate (after Brooke Astor died) from 2001 to 2007, after she slipped into senility. Attorney Morrissey forged a codicil (addition) to Ms. Astor's will, giving Mr. Marshall over some $60 million. Astor died in 2007 at age 105.
Lawyer Morrissey's attorney asked the Disciplinary authorities to hold off acting against his law license until his expected appeal of his criminal conviction is decided.
The First Department noted that conviction of a felony under New York law results in automatic disbarment and denied lawyer Morrissey's request for delay. Morrissey was disbarred retroactive to the date of his criminal conviction, October 8, 2009.
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Bronx accident lawyer)
Matter of Mark Kressner
First Dept.
Admitted to Bar: 1976
Discipline imposed: Immediate (Feb. 9, 2010), although interim (temporary) suspension of law license pending completion of investigation
Some general background. Attorneys can have different kinds of bank accounts. Their law firm bank account for business and lawsuit expenses and stuff; their personal account to accept deposit of their pay checks and pay personal bills and living expenses; and an escrow or "IOLA" bank account. An escrow account is a special creature-it is not the attorney's money and usually not entirely the client's money. The funds in an attorney escrow account belong to everyone and to no one at the same time. This bank account can only be accessed when the money is paid out or distributed according to contract or agreement or court order.
Escrow accounts are ferociously protected by the courts, because they always contain at least some (if not all) attorney's client money. The easiest way for an attorney to get into trouble is to mess with his or her escrow account, say "borrowing" money from it like a personal piggy bank. Or using the money to pay off losing investments, or for gambling debts, or to buy drugs, etc. The courts do not tolerate this. And there can never be an excuse by the attorney controlling the account that the money disappeared by accident, because cash withdrawals or escrow checks paid to "cash" aren't allowed.
Now we turn to lawyer Mark Kressner.
First admitted to the practice of law in 1976, attorney Kressner got into trouble in 1985. A corrupt son-of-a-gun, Kressner and his then law partner paid off an attorney who worked for a charitable organization to give them information about clients of the charity hurt in accidents or injured by medical malpractice. The purpose was to allow attorney Kressner's firm to improperly solicit potential clients who had been injured in accidents or had potential medical malpractice claims against the organization's hospitals and facilities. This decision, reported at 111 A.D.2d 730 and 108 A.D.2d 334, does not give the name of the charity.
Kressner and partner plead guilty to a misdemeanor - soliciting business on behalf of an attorney, a violation of New York State's Judiciary Law. Noting that lawyer Kressner and his partner "[p]aid another attorney to act in breach of his duty to his employer," the Court gave Kressner a three-year suspension of his law license. For reasons unknown, lawyer Kressner waited an extra five years until he requested and got his law license reinstated. He was allowed to practice law again commencing on September 23, 1993.
Apparently he didn't learn his lesson. In this case (the subject of this blawg), the lawyers' Departmental Disciplinary Committee went to the Appellate Division and requested an immediate suspension of attorney Kressner from the paractice of law because it felt that "[h]e has committed acts of professional misconduct posing an immediate threat to the public interest."
Now it gets even more interesting, Dear Readers.
It seems that lawyer Kressner was using his attorney special escrow bank account to block money from being seized by the government for tax bills and other debts. This could only work because - as I said before - of the special nature of the attorney escrow bank account, that being that the money there is mostly or even all belonging to client(s) so that seizure of those funds by the authorities would punish innocent clients who might be entitled to and, in fact, need their funds for their business dealings or whathaveyou. On the other hand, the escrow account provides a neat camouflage for wrong-minded lawyers seeking to put their money out of reach of the law. As attorney Mark Kresssner did seek to keep the tax authorities from taking his money.
Kressner had gotten involved in a failed real estate venture and tax shelters, forcing him into personal bankruptcy in 1991. And he owed:
a total of more than $500,000 in taxes to the New York State Tax Commission and the Commissioner of Labor, and,
$1 to $2 million in taxes to the Internal Revenue Service.
From 1990 through 2006, the IRS obtained $1,082,842 in liens against lawyer Kressner, and from 1990 through 2008, the New York State Tax Commission and Commissioner of Labor obtained $246,193 in liens and judgments against him.
Shortly after attorney Kressner deposited a $50,000 legal fee into his business operating account in December 2007, the New York State tax authorities seized those funds plus the remaining balance in the account.
From that point forward, lawyer Kressner stopped using his operating account and personal bank accounts and only utilized his IOLA account for business and personal purposes. Kressner admitted to the attorney disciplinary authorities that he knew that the IRS and New York State tax authorities could not seize the money he deposited in his IOLA account. He further admitted that there were client funds in his IOLA account when he deposited personal funds into it, but stated he has not used any client funds.
Attorney Kressner used lending companies, such as Ardec Funding, to advance funds to himself to be used for both personal and business operating purposes in anticipation of cases being settled. Lawyer Kressner would deposit Ardec funds into his IOLA account to shield this money from the IRS and New York State tax authorities. He admitted that he did not maintain a ledger for his escrow account identifying client matters, monies deposited and disbursements as required.
Lawyer Kressner asserted that he planed on retiring or resigning from the practice of law, with no assurance that he would fulfill that promise.
The Court held: "We conclude that [Kressner's] commingling of funds in his IOLA account in order to hide his income from tax authorities, his failure to maintain adequate bookkeeping records, and his financing arrangements with lending corporations to keep his apparently insolvent law practice afloat creates a troubling situation which puts his clients' funds at risk and thus immediately threatens the public interest warranting an interim suspension."
Matter of Gary R. DeFilippo Second Dept. Admitted to Bar: 2001 Discipline imposed: Automatic disbarment because of conviction of felony
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Bronx accident lawyer)
This lawyer was employed as a Richmond County (Staten Island) District Attorney. At the South Shore Country Club - a fancy catering hall and night spot in Staten Island, New York - he smashed a glass into the left eye of fellow reveler Mitchell Miller; no accident. Miller's eye was so badly damaged that it was later removed.
To avoid the appearance of a conflict of interest because attorney DeFilippo used to work there, the Staten Island D.A. passed the case to Brooklyn, and it was prosecuted by Brooklyn assistant district attorneys. DeFilippo claimed at trial that he acted in self defense, but the jury wasn't buying.
On November 14, 2008, lawyer DeFilippo was convicted of second degree assault, a Class D felony. Before DeFilippo's sentencing, Miller read a victim's impact statement to the court, where he told how being hurt by DeFilippo had ruined his health. On March 5, 2009 DeFilippo was sentenced to 3½ years in jail. Almost a gift, because he could have received up to 25 years. He was also hit with an eleven year order of protection and two years of post-release parole supervision.
On September 22, 2009 New York's Appellate Division, Second Department, confirmed the obvious. The Court held (in part) that, "By virtue of his felony conviction, the [lawyer DeFilippo] ceased to be an attorney and counselor-at-law pursuant to Judiciary Law § 90(4)(a) and was automatically disbarred effective November 14, 2008."
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Queens accident lawyer)
Matter of Jerrold A. Weinstein
First Dept.
Admitted to Bar: 1989
Discipline imposed: Immediate, although interim (temporary) suspension of law license pending completion of investigation (Decision issued January 8, 2010)
This story is like the proverbial tip of the iceberg. Lawyer Weinstein settled his client's car accident case for $15,000. The client signed papers sent to her by the lawyer to complete the settlement, and returned the papers to the lawyer.
Now the decision doesn't say this, but we accident lawyers know that when an accident case settles the insurance company, at the time it sends its settlement check, by law must always send a short letter directly to the lawyer's client stating that it has mailed the settlement check to the lawyer. This rule is in force for a simple reason: so the client knows money is coming, and to discourage that rare attorney with larceny in his or her heart from stealing.
This did not help the client here. Lawyer Weinstein was ordered to produce his bank records and did so. The records show the $15,000 settlement money deposited into his lawyer escrow bank account and that he took a $5,000 (a) fee. Despite the lawyer's claim that he gave the client $10,000, his bank records did not show that. The records did show that he paid rent and utility bills and mixed the escrow money in with his personal money; huge "no, noes."
Once a lawyer is found taking client's money, he's immediately shut down by license suspension - as happened here. This is to protect the public from harm by preventing the lawyer from using his license to steal any further. But unstated is the notion that if the lawyer has been caught this time, it's likely not his first time stealing and he probably robbed accident settlement money from other clients (usually the most helpless or hurt or easy to steal from), and the full extent of his thieving ways has yet to be determined.
Stay tuned Dear Readers, we haven't seen the last of the damage and injury caused by lawyer Weinstein. Piled on top of the physical injury visited upon his client/accident victims - the most important of which are the clients he ripped off - and the least important of which carries pain nevertheless - giving plaintiffs' personal injury attorneys yet another "black eye."
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Bronx injury lawyer)
Matter of Uzmah Saghir
U.S. District Court, Southern District of New York .
Admitted to Bar: N.Y. (2002)
Discipline imposed: Disbarred from The United States (Federal Court) S.D.N.Y.
She resigned from: the U.S. Second Circuit Court of Appeals, 9/09.
She resigned from: The United States (Federal Court) E.D.N.Y, 9/09.
Doesn't affect her N.Y.S. Bar Admission (yet)- but New York State discipline probably will follow.
This legal opinion starts off very drily. The big picture is of an attorney that took $5,000 from an inmate's family to make a motion to seek a reduction of the inmate's 14 year Federal prison sentence, with an additional $10,000 to be paid to the attorney after the motion was made. So far, so good. Seems that she took the money and didn't do the work. Sad and all too common among certain bad apples in the legal profession. But then the plot thickens (or sickens).
Saghir was hired by the inmate's family and then had the motion prepared by another prisoner, a "jailhouse lawyer" who was a client of Saghir. The complaint of the prisoner whose family paid attorney Saghir $5,000 (about Saghir's representation of him) started the disciplinary process.
In response to numerous attempts by the disciplinary authorities to investigate, letters were written, subpoenas for records served and depositions requested. Several adjournments and extensions of time were granted to Saghir at her request.
Saghir basically asserted her Fifth Amendment right against self-incrimination or threatened to assert her Fifth Amendment right against self-incrimination across-the-board. In a civil proceeding (unlike in a criminal case), this right permits "adverse inferences" to be made against the person asserting the right. Furthermore, some of the records sought, such as bank account records, retainer agreements and such, are required by law to be kept by an attorney, and are not subject to "pleading the Fifth."
A quote from the decision:
"On September 9, 2009, the day before her response to the Statement of Charges was due, Respondent submitted a letter . . .in which she stated that she had resigned from the bar of the United States Court of Appeals for the Second Circuit...".
Another quote from the decision:
"Respondent submitted a letter of resignation to the bar of the United State District Court for the Eastern District of New York on the same day. On September 17, 2009, the United States District Court for the Eastern District of New York ordered that Respondent's name be stricken from the roll of attorneys of that Court."
Lawyer Saghir then tried, unsuccessfully, to withdraw as the inmate's counsel.
That inmate gave a deposition (oral question and answer session) to the disciplinary authorities. (And here it gets realy interesting.)
He testified that he learned about attorney Saghir's services through the "jailhouse lawyer" after he saw a flyer advertising the legal services of the "Federal Imprisonment Reduction Experts, LLC," or "F.I.R.E.," in the prison library.
The "jailhouse lawyer" told the other prisoner that the flyer described services that attorney Saghir could provide, and that he worked with Saghir. (It turns out that "F.I.R.E." was run by Saghir's brother.) The "jailhouse lawyer" chased clients and did the paperwork, which attorney Saghir signed off on. The "jailhouse lawyer" told the other inmate that Saghir had analyzed the case and determined that the fee for her services would be $15,000. $5,000 was to be paid up front, and the remaining $10,000 to be paid after the inmate won his motion and was released from prison.
The inmate testified that members of his family met with lawyer Saghir in her Brooklyn office, paid her $5,000, and received a receipt. He further testified that after Saghir was paid $5,000, he saw the "jailhouse lawyer" typing the papers in the prison library. The inmate then signed the papers, and was told by the jailhouse lawyer that he had sent the papers to Saghir.
The inmate testified that he never had any direct contact with Saghir. All communication with her was conducted through the "jailhouse lawyer" or the inmate's family. The complaining inmate wrote to attorney Saghir, seeking her opinion of his present situation and asking her to respond in writing. He got no response and his family was unable to get her on the telephone after her she was hired in April 2007.
As I previously pointed out, documents and information were sought from Saghir, and not provided by her. She repeatedly invoked her Fifth Amendment right against self-incrimination. This was no accident, as she had a lot to hide.
The disciplinary investigation picked up steam when the authorities checked prison records and found:
(1) From April 21, 2007 through September 16, 2008, the "jailhouse lawyer" received 14 separate payments from Saghir or her brother Faizan Saghir. The payments total $5,450. The individual payments range from $200 to $750 and were made on a nearly monthly basis.
(2) Three of the visits to the jailhouse lawyer occurred between January 2008 and April 2008--during the time attorney Saghir claims to have required bed rest as much as possible and was supposedly unable to make a prison visit to the complaining inmate.
(3) The Federal prison maintains a log of incoming correspondence that has been marked by the sender as "Special Mail" a designation which may be used by attorneys and courts, as well as certain other legal and governmental entities, and which is intended to ensure that the correspondence will be opened only in the presence of the inmate. From February 2007 through April 2008, the "jailhouse lawyer" received "Special Mail" from attorney Saghir 12 separate times.
(4) From April 1, 2007 to October 1, 2008, attorney Saghir did not send any "Special Mail" to the complaining inmate (her client).
Prison records show that from April 1, 2007 through February 2009, the "jailhouse lawyer" and attorney Saghir spoke regularly, often on a daily basis, and at times more than once a day. Recording made by the prison indicate that the "jailhouse lawyer" asked attorney Saghir to provide him with information concerning cases against other individuals.
It appears that the "jailhouse lawyer" asked attorney Saghir for this kind of information on a regular basis, and that some of the individuals mentioned in the calls are both inmates at the Federal prison and clients of Saghir. Furthermore, on numerous occasions, the "jailhouse lawyer" informed Saghir that certain individuals would be contacting her, they discussed specific amounts of money that would be charged to these individuals, and the "jailhouse lawyer" often determined and communicated, to Saghir and to the potential clients, the fee to be charged for Saghir's services.
Investigating counsel received letter complaints about attorney Saghir from a number of other inmates at the Federal prison.
Prisoner A:
Retained Saghir through his family in June 2007 based on a recommendation from the "jailhouse lawyer." Prisoner A's family paid Saghir $30,000 to represent him in connection with a motion to obtain a sentence reduction. Shortly after hiring Saghir, Prisoner A filed a pro se [without a lawyer] motion prepared by the "jailhouse lawyer."
Prisoner A subsequently filed several more pro se submissions, all of which were prepared by the "jailhouse lawyer." Prisoner A asserted that he never had any direct communication with Saghir the course of the representation, that Saghir did no work on his behalf, and that Saghir failed to appear to represent Prisoner A at a hearing even after she assured Prisoner A's family that she would attend.
At some point in the spring of 2009, Saghir met with Prisoner A at Federal prison to discuss the return of the retainer. Saghir told Prisoner A that she would return his family's retainer and would send him a document setting forth certain terms regarding the return of the fee, but she did not do so.
Prisoner B :
Testified that he retained attorney Saghir in July 2007 after being told by "jailhouse lawyer"
that Saghir could assist him in reducing his sentence or getting released from prison. "Jailhouse lawyer" informed Prisoner B that Saghir's fee would be $7,000, and that $3,500 must be paid upfront. A Western Union receipt showed that Prisoner B's wife wired $2,000 to Saghir on July 6, 2007, and wired $1,500 to another individual on July 7, 2007. Prisoner B testified that the July 7 payment was made pursuant to instructions from "jailhouse lawyer."
Shortly after paying the retainer fee, Prisoner B submitted several pro se motions, all of which were authored by "jailhouse lawyer." Prisoner B testified that neither he nor his wife had any communications with attorney Saghir, despite numerous attempts to contact her.
Prisoner C:
Prisoner C stated that he retained Saghir through his family in September 2007 after learning about her from "jailhouse lawyer." He testified that he never had any communication with attorney Saghir and that Saghir conducted no work on his behalf.
Saghir told Prisoner C's aunt that the fee would be $3,000 to represent Prisoner C in connection with his appeal, and that Saghir would provide Prisoner C's aunt with a retainer agreement after receiving payment. Prisoner C's aunt stated that she sent Saghir a cashier's check for $3,000, but never received a retainer agreement and, despite numerous attempts to contact Saghir, never heard from her.
The disciplinary authorities found discipline justified because of the facts established during the course of the investigation, as well as the adverse inferences drawn from lawyer Saghir's reliance on her Fifth Amendment privilege and her failure to respond to demands for documents not subject to privilege.
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Bronx accident attorney)
Matter of Vernell A. Clarke
First Dept.
Admitted to Bar: 1991
Discipline imposed: Suspension on October 12, 2006
Five (5) year suspension on Dec. 10, 2009
First, this moron attorney was suspended from the practice of law for failing to register with the State and pay, like, a $300 fee. No one is hurt and no client has suffered financial injury by Clarke's inaction in failing to fill out a form and mail it with a check to New York's Office of Court Administration. However, Clarke did plenty of damage since then, and hurt his employer plenty.
Yet, it is no accident that Clarke agreed to remain suspended while the disciplinary authorities investigated claims of misconduct against him. He hoped that New York's Appellate Division would suspend him retroactive to his 2006 suspension for failing to file - for he knew he was definitely getting suspended from the practice of law for the shenanigans he pulled. He wanted to start the clock running early on his eventual suspension. But the Court didn't bite. Its punishment of Clarke (discussed below) starts running from the day of its December 10, 2009 decision.
The Court finds that "Clarke engaged in a pervasive pattern of misconduct by deceiving his employer, Fidelity National Insurance Company ("Fidelity"), and four of Fidelity's clients, with respect to work that he completely failed to perform in five separate matters, and by neglecting a total of six matters involving five separate clients."
Clarke admits all of this and, essentially, throws himself "on the mercy of the Court" for his punishment.
So what did Clarke, who worked as New York Area Counsel for Fidelity, do to injure and hurt his employer and clients?
1. a. In 2001 Clarke was to underwrite and supervise a series of mortgage refinance transactions affecting two properties in Manhattan. After the entire transaction had closed, he failed to record the mortgage documents.
b. Clarke concealed his neglect by: (1) falsely assuring counsel to the lender that the documents were recorded, and; (2) forwarding fraudulent endorsements to the Fidelity loan policies delivered at the closing, which falsely stated that the mortgage instruments were recorded and reciting City Register Filing Number ("CRFN") information which actually referred to completely unrelated transactions.
2. a. The same client hired Fidelity in 2006 to insure a refinance transaction involving the mortgages on the same properties as the first matter, which involved new money being secured by a new mortgage on each property.
b. Continuing to conceal his prior neglect, issued a title commitment on behalf of Fidelity which recited the same fraudulent CRFN information as contained in the 2003 endorsements. Based upon the new title commitment issued by respondent, the lender closed the loan transaction and Fidelity insured the new mortgage loan, unaware that the original loan documents had never been recorded. Fidelity was thus unable to record the 2006 loan documents.
3. a. Clarke became responsible in 2003 for refinancing in connection with a bankruptcy reorganization. Although a closing took place on December 24, 2003 and he recorded some documents in early July 2004, he did not record other documents until January 2005, and still others as late as April 2006. He never recorded mortgage documents with respect to properties in Suffolk County.
b. Clarke concealed his neglect by preparing and then by sending to the lender's counsel an endorsement which contained false CRFN information for documents that, at the time of its issuance, had not been recorded and for documents that he never recorded. When, in April 2006, Fidelity was advised by a borrower's counsel that the Suffolk County mortgages had never been recorded, Clarke told a Fidelity executive that he would personally record the documents, but he never did so.
4. a. In 2005 Fidelity was hired to issue a title insurance policy insuring the vesting of title in a family partnership. Following the execution of two necessary deeds, upon receipt of same, Clarke failed to record the deeds.
b. Following an inquiry from the family's counsel, Clarke assured counsel that the deeds had been recorded. He also forwarded official recording cover pages which he had fabricated and on which he had superimposed the facsimile signature of the City Registrar and the facsimile seal of the City of New York, which falsely indicated that the deeds were recorded. They contained bogus CRFN information from duly recorded instruments affecting entirely different properties in Queens.
5. a. A client hired Fidelity in May 2006 to provide title insurance for a transaction. Fidelity directed Clarke to record certain documents showing that loans for the property were paid off. He failed to file any of those documents.
The client owed combined State and City transfer taxes for these transactions totaling $472,500 and at the closing, executed the appropriate transfer tax returns and advanced $472,500 to Fidelity to issue checks to the Department of Finance. However, Clarke failed to file either the State or City transfer tax returns within the appropriate statutory period, and, in fact, never filed those returns. In December, 2006, Fidelity discovered that the accounting file for the client still showed a positive balance of $472,500.
b. In response to e-mails from Fidelity's Dallas office inquiring about the recording status of the documents, Clarke sent an e-mail falsely stating that the documents were recorded. In a subsequent e-mail to the Dallas office, he attached six documents fabricated by him to indicate that all of the documents had been recorded. Each page included false CRFN information (obtained from other duly recorded instruments regarding unrelated property), superimposed with the facsimile seal of the City Register and the facsimile seal of the City of New York.
When confronted about the transfer taxes, Clarke falsely advised Fidelity's accounting personnel that the transaction had not closed on June 16, 2006. In support of this false assertion, he produced transfer tax returns which he altered to reflect a change of the date of transfer from June 16, 2006 to November 30, 2006, which would have made the transfer tax due still within the respective statutory periods. As a result of Clarke's failure to pay the transfer taxes in the statutory period ending in July 2006, approximately $159,000 in penalties and interest accrued on the unpaid taxes until his misconduct was discovered in December 2006. Fidelity thereafter immediately paid the penalties and interest.
6. In October 2001, Clarke was assigned by Fidelity to underwrite and supervise the closing on the sale of a Manhattan condominium unit for $7,100,000. The City's Register's office rejected Fidelity's closing documents because of errors and it was Clarke's responsibility to address the errors and to forward the corrected documents to the City Register. However, he never made the corrections, he failed to have the documents recorded, and, in fact, the original documents were still in a file in his office when Fidelity fired Clarke in December 2006. Further, at the time of the October 2001 closing, the client executed tax returns and advanced $131,941.44 to Fidelity to cover combined State and City transfer taxes due on the transaction. However, Clarke never filed the tax returns, which resulted in penalties and interest accruing in the amount of $97,566.86. Fidelity paid the $97,566.86 in 2006 when it discovered Clarke's misconduct.
Clarke has his psychologist testify at his disciplinary hearing that he suffered from clinical depression since September, 2005, including alcohol and drug abuse. And while Clarke's doctor testified that his depression was a major contributing factor to his neglect of legal matters, she could not conclude that his depression and "self-destructive" behavior were causally linked to his repeated acts of intentional deceit. And Clarke acknowledged that prescribed medication was effectively alleviating his depression by 2006, yet he continued to engage in fraudulent misconduct during that period.
New York's Appellate Division holds:
"Given respondent's pattern of misconduct, his repetitive fabrication of documents to deceive his clients and Fidelity, and the large financial loss borne by Fidelity as a result of respondent's misconduct, a substantial suspension is warranted."
Clarke gets suspended from the practice of law for five years.
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Queens injury lawyer)
Hugh Zuber
This case has not yet been decided by New York's attorney disciplinary authorities. But there's little doubt this lawyer will be disbarred, because he's plead guilty in Federal Court to two counts of mail fraud.
Zuber currently works for the New York City Corporation Counsel - the City's lawyers. Usually defending against lawsuits by people hurt or injured in accidents, he was earning about $80,000 per year. Zuber's actions took place before he went to work for the Corporation Counsel; he has been placed on "leave."
He committed mortgage fraud and falsified papers, including forging a judge's signature, to show his victims that there were lawsuits pending where they might recover their money. This brings me back to my blawg of November 13, 2009, about disgraced attorney Bryan J. Holzberg, who also fabricated papers for phony lawsuits to show to clients while ripping them off.
Zuber claims to have had a gambling problem.
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Bronx injury lawyer)
Matter of Christopher L. Musmanno
First Dept.
Admitted to Bar: N.Y. (1997), N.J. (1988)
Discipline imposed: public censure
When a lawyer is admitted to practice law in other states in addition to New York, an imposition of professional discipline by that other state will also lead New York State to consider if the lawyer's conduct deserves some kind of professional discipline by New York; this is called reciprocal discipline. The purpose is to protect the public from being hurt by its attorneys.
This lawyer's trouble arose out of trying to beat a traffic ticket in New Jersey. After being stopped for an illegal left turn, he told the police officer that he worked for the Union County (N.J.) Prosecutor's Office and showed him an i.d. card issued by the Union County Sheriff's Office.
The Court's decision here doesn't indicate what the i.d. card was for or why Musmanno had it. Suffice it to say Musmanno eventually admitted to the officer that he lied about working for the Union County Prosecutor. He was charged with impersonating a law enforcement officer and obstruction of justice. Musmanno eventually pled guilty to disorderly conduct.
So, "no harm no foul," right? No one was hurt. No one injured. No money stolen. And this attorney should have learned his lesson. Here this story should end, with Musmanno receiving some mild form of attorney discipline that would be private and not public. These things happen all the time, and in minor cases, we never hear about them.
One of my favorite comedians utters one of my favorite lines, which is: "You can't fix stupid." Musmanno then lies again, this time to the New Jersey lawyer discipline authorities (called the Office of Attorney Ethics). He tells them that the charges against him were "dismissed," but we know that he really pled guilty to disorderly conduct, which should not be a big deal - except that he lied about it.
So now Musmanno has twice lied. True, he didn't commit perjury (lying under oath). Also, he didn't steal anything or hurt any of his clients. But attorneys are held to a higher standard. Or at least we're supposed to be.
On December 3, 2009 the New Jersey Supreme Court censured Musmanno - this means he was slapped on the wrist and told not to do this again - finding that what he did "adversely reflects on the lawyer's honesty, trustworthiness and fitness as a lawyer." And based on all of this, New York's disciplinary authorities gave Musmanno the same punishment: public censure. And thus ends a story that never should have begun.
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Brooklyn accident lawyer)
Matter of Bryan J. Holzberg
Second Dept.
Admitted to Bar: 1983
Discipline imposed: immediate temporary suspension from the practice of law (8/18/2008), followed by disbarment (12/15/2008).
August 18, 2008:
New York's Appellate Division, Second Department, finds: "repeated neglect of legal matters entrusted to [Bryan Holzberg] and fabrications that he made or created with respect thereto" and states the facts:
1. George Begakis
On or about April 24, 2003, Bryan Holzberg was retained by George Begakis to represent Aegean General Contracting, Inc. (hereinafter Aegean), to collect payment under a written contract to provide painting and related interior and exterior services on public housing projects owned by the New York City Housing Authority and to file public improvement liens.
In June 2003, Bryan Holzberg informed Mr. Begakis that he had filed public improvement liens on the subject public housing projects when no liens were filed or placed against any of the subject buildings.
Thereafter, he provided Mr. Begakis false and misleading information about the status of his legal matter.
Such false and misleading information include statements that:
(1) The lawyers for the defense agreed to settle for the full amount due under the contract,
(2) Defendants reneged on the agreement to settle and had appealed,
(3) Defendants lost the appeal and Bryan Holzberg had obtained a judgment against them, and
(4) Bryan Holzberg received a check in full payment, including interest, totaling $89,682.
On January 23, 2007, Bryan Holzberg tendered a check in the amount of $64,382 representing Aegean's share of the recovery. Aegean deposited the check, but was advised that a stop payment order had been issued. In fact, Bryan Holzberg never obtained a judgment against defendants and never collected any payment from the purported action.
2. Louis Di Lauro
In the summer of 2000, Mr. Di Lauro retained Bryan Holzberg to recover money owed under a contract for the sale of certain merchandise.
Bryan Holzberg provided Mr. Di Lauro a draft complaint and thereafter claimed he commenced an action on Mr. Di Lauro's behalf in United States Federal Court in New York. Bryan Holzberg, however, never filed such action.
Thereafter, Bryan Holzberg provided Mr. Di Lauro false and misleading information about the status of his legal matter, including information include statements from July 2000 to July 2003 that:
(1) Mr. Di Lauro's case was pending in the Federal Court; and,
(2) Mr. Di Lauro's case was delayed for various reasons, resulting in lack of progress.
In or about July 2003, Bryan Holzberg informed Mr. Di Lauro that he had obtained a judgment against defendant. Bryan Holzberg provided Mr. Di Lauro a purported order granting a default judgment, bearing the alleged signature of U.S. Magistrate Judge Ronald L. Ellis under case number 02 CIV 4910. Thereafter, Bryan Holzberg informed Mr. Di Lauro that he was experiencing difficulties collecting on the judgment. In response to inquires by his client, Bryan Holzberg provided Mr. Di Lauro with a portion of an affidavit he prepared for use in a purported matrimonial action pending in Ohio and involving the defendant, in which Bryan Holzberg claimed a stay prevented the collection of Mr. Di Lauro's judgment.
In or about September 22, 2005, Bryan Holzberg provided a check to Mr. Di Lauro in the amount of $156,500 claiming it was a partial payment on the judgment against defendant and informed his client that he could deposit the check after October 8, 2005. The check was deposited but returned for insufficient funds.
In or about August 24, 2006, Bryan Holzberg provided Mr. Di Lauro two undated checks from his attorney IOLA account totaling $43,940 and informed him that they were in anticipation of receipt of funds from the Trustee in the Ohio Bankruptcy of defendant, and that upon his receipt of the funds, he would provide his client with the date of deposit for the checks.
In or about March 2007, Bryan Holzberg provided Mr. Di Lauro a copy of a purported order from the United States Bankruptcy Court for the Northern District of Ohio, modifying distribution in defendant's supposed bankruptcy, dated March 12, 2007, containing the name Melanie L. Cyganowski, U.S. Bankruptcy Judge.
Investigation by the Grievance Committee revealed that there is no record of Mr. Di Lauro's case in the Federal Court and that there is no case divorce case involving the defendant in Ohio. U.S. Bankruptcy Judge M. Cyganowski was a Bankruptcy Judge in New York, not Ohio. Further, the case number affixed to the purported order from the United States Bankruptcy Court in Ohio is actually the case number for a Chapter 13 Voluntary Petition filed in New York, over which Judge Cyganowski presided and in which a different debtor was represented by Bryan Holzberg.
3. Jack Fermaglich
In or about early 2006, Bryan Holzberg was retained by Jack Fermalgich to prosecute an action relating to a proposed housing development on lands adjoining Mr. Fermaglich's residential property. Bryan Holzberg prepared a summons and complaint, and advised his client that he had commenced an action in Supreme Court, Nassau County. At his client's request, Bryan Holzberg provided a copy of the purported filed complaint, bearing Index No. 6440/06. Bryan Holzberg never filed any action on Mr. Fermaglich's behalf.
Thereafter, Bryan Holzberg provided Mr. Fermaglich false and misleading information about the status of his legal matter. Bryan Holzberg provided his client with a purported Notice of Discovery and Inspection dated June 28, 2006, and a Second Notice dated July 27, 2006. He informed his client that his case had been assigned to Justice Winslow, and that, while a preliminary conference had been scheduled, it was delayed.
At an investigative appearance before the Grievance Committee, Bryan Holzberg falsely testified under oath when he denied ever telling his client that:
(1) the action was filed with the court,
(2) the action was assigned to Justice Winslow, and,
(3) a preliminary conference had been scheduled in the case.
Comment:What's strange here is that it doesn't appear that the attorney was stealing settlement money - the really big bucks - most likely he was just pocketing the fees from his clients. It seems that whatever motivated him to steal, also made him act hastily. And one has to wonder why he didn't just do the legal work.
December 15, 2008: Bryan Holzberg pleads guilty to one count of possession of a forged instrument in the second degree, a felony. He is automatically disbarred because of this felony conviction.
FROM A NASSAU COUNTY DISTRICT ATTORNEY PRESS RELEASE:
August 7, 2009:
Nassau County District Attorney Kathleen Rice announced today that a disbarred Port Washington attorney [Bryan Holzberg] has been arrested and charged with possessing a falsified Nassau Supreme Court document that indicated a settlement had been reached and a judgment ordered on his client's behalf. Rice said that the document utilized the forged signature of a Nassau Supreme Court judge and that not only was the settlement phony, but the client's lawsuit had never even been filed.
Brian Holzberg, 53, of Port Washington has been charged with Criminal Possession of a Forged Instrument in the Second Degree. He faces up to seven years in prison if convicted. Rice said that on or about June 14, 2004, Holzberg was retained by a Great Neck man to help him collect a debt from a business associate. Holzberg presented his client with numerous legal documents proving that he had filed suit in Nassau Supreme Court when, in fact, Holzberg never filed any paperwork.
On or about January 26, 2006, Holzberg presented his client with a document indicating that a settlement had been reached and a judgment rendered on his behalf. He told the client that he would soon be receiving a settlement check for $24,000. The document bore a signature purporting to be that of Nassau Supreme Court Justice Anthony L. Parga. The client grew suspicious, however, when he never received a check and was unable to reach Holzberg by phone. In August 2008, after contacting Parga's office, the client was informed that there was no case on file with that title or index number and that Parga had not signed any order in the case.
Holzberg was disbarred in December 2008 after a similar incident in Suffolk County. Rice said that authorities are still unable to determine the motivation for the crime and that investigators cannot determine whether Holzberg forged the signature himself or was utilizing someone else's forgery.
"Mr. Holzberg violated the trust his client placed in him and he violated the law by trying to cover his tracks," Rice said. "While his motivation is unclear, the breach of attorney-client trust demands the aggressive prosecution of this case. I don't care if he wears a suit and tie to work, this guy abused his client's trust and he tried to scam a judge and regardless of the color of his collar, that's a crime in my book."
FROM A QUEENS COUNTY DISTRICT ATTORNEY PRESS RELEASE:
October 30, 2009:
Queens District Attorney Richard A. Brown announced today that an attorney who was disbarred following a conviction for possession of a forged instrument in Suffolk County has now been charged with possessing the forged signature of a Queens Supreme Court Justice on a fake court order in an effort to hold on to $35,000 of a client's money being held in an escrow fund.
District Attorney Brown said, "The defendant is accused of using his position of trust as an attorney to break the law. His alleged actions not only dishonor the other men and women of the New York State bar who take great pride in their work but erode public confidence in the integrity of the judicial system."
The District Attorney identified the defendant as Bryan J. Holzberg, 53, of 121 Reid Avenue, in Port Washington, New York. Holzberg is presently awaiting arraignment in Queens Criminal Court on one count of second-degree criminal possession of a forged instrument. He is currently serving a sentence of probation after pleading guilty to the same charge in a separate case in Suffolk County last December. If convicted, he faces up to seven years in prison.
District Attorney Brown said that, according to the criminal charges, the defendant was given $35,000 to hold in an escrow account in connection with a real estate transaction. When the real estate transaction did not go forward the defendant was asked to return the funds to Abraham Gabbay and Nachmy Bronstein in their corporate status as House of Tsui Corporation. After repeated demands for the funds were ignored, according to the complaint, Gabbay met with the defendant at a Brooklyn restaurant on October 1, 2009, and he showed Gabbay a copy of a purported Order To Show Cause signed and stamped by the Honorable Charles J. Markey of the Queens Supreme Court which refused the requested order that would release the money held in escrow. When detectives showed a copy of the purported order to Judge Markey he told them that he did not create or sign the order or authorize anyone else to issue it.
It should be noted that criminal charges are merely an accusation and that a defendant is presumed innocent until proven guilty.
Comment: Looks like this disgraced former attorney and former co-worker of your author graduated to stealing big. (Although I always thought the big money was in stealing settlements from accident cases.) Though it does not appear that he tried to steal or practice law after his suspension from the practice of law and later disbarment, to protect yourself from dealing with attorneys who have been suspended or disbarred, you can check their status on the official website for the New York State Unified Court Systems, http://www.courts.state.ny.us/ under "Attorney Registration."
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Bronx accident lawyer)
Matter of Fawn D. Balliro
Second Dept.
Admitted to Bar: 2004
Discipline imposed: 6 month suspension
This story is one that shouldn't have happened.
Attorney Fawn Balliro was an Assistant District Attorney in Massachusetts. She fell in love with one Greg Knox, in Tennessee. Knox assaulted her in 2005, but she refused to press charges or cooperate with the police. She also told Knox not to talk to the cops.
Attorney Balliro gets handcuffed and arrested and charged with disorderly conduct and obstruction of justice (in my opinion, a bunch of crap). In any event, Knox gets arrested and charged with two counts of assault. Like many abused women, Balliro seems emotionally damaged and apparently lacks self-esteem, because she bails Knox out of jail the next morning and they reconcile.
Balliro goes back to Massachusetts. Knox visits her there and tells her he's on probation for drug charges. A conviction for assault in Tennessee would violate his probation and who would support his two young daughters, with his ex-wife unemployed?
Knox goes to trial in Nashville, Tennessee in April, 2005. Balliro decides to help Knox by concocting a story about falling and injuring herself. She will not press charges, but is subpoenaed to testify anyway. The Knoxville Assistant District Attorney handling the case tells Balliro that she can not drop the charges against Knox and that he did not believe her when she testified in court that she fell on a piece of furniture. Knox beats the charges.
In December 2005 a Tennessee District Attorney wrote to the Massachusetts District Attorney to advise that Balliro had lied under oath. Balliro is suspended from her job and told to get a lawyer.
In attorney disciplinary proceedings based on her lies to police and (under oath) at the trial in Tennessee, Massachusetts gave Balliro a six-month suspension of her law license. This despite Balliro arguing that she was in a precarious psychological state at the time.
New York matched the discipline handed out by Massachusetts, suspending Balliro for six months, and making her reinstatement to practice law in New York contingent on her first being reinstated in Massachusetts.
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Queens Injury Lawyer)
In Re: Bertram Brown
Please pay attention to this timeline:
December 15, 1954 - Bertram Brown is admitted to the practice of law in the State of New York.
On May 5, 2004 - a complaint was made by Lucia Santiago that Bertram Brown had represented the Santiago family in the sale of real property in Richmond Hill that netted proceeds of $61,498.35. Bertram Brown allegedly put the money into his personal bank account ans spent some.
July 21, 2004 - a complaint was made that Bertram Brown took $74,000 of client funds, which he denies. A judge makes this complaint against him. Allegedly he sold a property for an estate (of a dead person) and kept the money from the sale, depositing it into his personal bank account, which money was supposed to go to the deceased's heirs.
December 8, 2004 - a complaint was made by Janice Ryan who hired Bertram Brown to represent her in a foreclosure proceeding and to get her mortgage with Chase Manhattan Bank reinstated. The mortgage was $85,000 in arrears at that time. In order to facilitate the reinstatement, Ryan entrusted Bertram Brown with $73,069.00. After the bank rejected the application for reinstatement of the mortgage, Bertram Brown advised Ryan to file for chapter 13 bankruptcy protection. Bertram Brown also suggested he retain the money to hide it for the duration of the bankruptcy proceedings (which is bankruptcy fraud). Once Ryan demanded the return of the funds, however, Bertram Brown repaid only $7,500.00, and only after repeated demands. The checks totaling the $7,500.00 were drawn from Bertram Brown's private account.
September 27, 2005 - Bertram Brown is immediately suspended from the practice of law, even before the charges against him are finally decided. This is to protect the public.
Further proceedings are held.
The Court notes:
"This Court's order of suspension was entered on September 27, 2005, and was served via overnight mail on [Bertram Brown's] then counsel in the afternoon of September 28th. On September 30th, [Bertram Brown] appeared before New York Civil Court Judge Jeffrey Oing, on behalf of his client Third Avenue Wireless, Inc. According to an affidavit from [Bertram Brown's] adversary, [Bertram Brown] appeared that day and made an application for an adjournment so that he could prepare and submit opposition papers to a motion, and entered into a stipulation adjourning the motion for that purpose.
On October 3, 2005, the adversary telephoned [Bertram Brown] asking him if he was suspended. [Bertram Brown] initially did not admit to it, indicating that the Committee was only looking into allegations, but when pressed, finally admitted he was indeed suspended. On or about October 17, 2005, [Bertram Brown] served the Committee with his affidavit of compliance with the order of suspension as required by 22 NYCRR 603.14(a)(I), swearing therein that he had fully complied with the provisions of the suspension order and the rules.
Nevertheless, two days later, on October 19, 2005, [Bertram Brown] again appeared in court on behalf of a client, Virginia Khublall, this time before Queens Supreme Court Justice Allan B. Weiss. Prior to the call of the calender, [Bertram Brown] engaged in negotiations with his opponent. [Bertram Brown] then appeared on behalf of the plaintiff never alerting the court or his adversary to the fact that he was interimly suspended. While [Bertram Brown] eventually advised opposing counsel that he had to be substituted because of a disciplinary "problem", he did not do so until Friday, October 21, during a settlement discussion. To date, [Bertram Brown] has never advised counsel that he has been suspended."
October 25, 2005 - Bertram Brown is questioned under oath anjd denies that he practiced law
in the Khublall matter because he had informed his client that he had been suspended before the court appearance and only appeared in court to obtain an adjournment.
November 2, 2005 - a complaint was made by Andrea Conyers alleging that Bertram Brown, among other things, had been holding a real estate buyer's down payment in the amount of $30,000 since November 2004. Bertram Brown claims the money is preserved intact and had been returned ott he buyer's attorneys, but his bank records reflect that from October 14 through November 7, 2005 (after the effective date of his suspension), he made six withdrawals to himself totaling $24,000, causing the balance in his account to fall below the amount required to be maintained on behalf of that third-party buyer.
April 13, 2006 - Bertram Brown is disbarred (loses his law license) for good.
You would think this would be the end of this matter, but it's not.
January 2007 - Bertram Brown is caught representing a client in The Bronx while using the name and credentials of a former associate, then again in Queens in September using the same alias. Both times, he is punished only with probation.
January 2009 - Bertram Brown, 81 years-old, surrenders to Brooklyn prosecutors for allegedly using a phony name to represent a client in a housing-court case. He was caught representing a Brooklyn landlord in a suit brought against him by a tenant. He faces mandatory jail time if he's convicted of another felony.
Comment: Does anyone think to check if he's mentally competent?
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Queens Accident Lawyer)
This "just off the presses."
A former client called to tell me that her niece was being evicted from her one-family house in Queens County and asked if I could help. The niece, who had recently lost her husband after a long illness, had already paid thousands of dollars to a mortgage re-structuring firm which could do nothing for her because she could not come up with $8,000 up front, and now some attorney wanted to charge the niece $1,000 per month. The aunt didn't want to see this woman get taken advantage of. So could I give a second (honest) opinion?
I'm no foreclosure expert - I represent people hurt in accidents and handle plaintiff's personal injury cases and lawsuits. Mindful that a little knowledge is a dangerous thing, I offered to look over the young woman's papers and see if I could give any meaningful advice - with all disclaimers that I'm not a foreclosure expert, but in the interest of decency and helpfulness I'd gladly apply some common sense to the problem as a favor to my former client.
So this woman came to see me that very evening with some papers. She owed a total of $370,000 on a one-family house that I doubt is worth that much now, in light of the problems in our nation's and New York State's economy and the real estate market. She is presently in mortgage arrears for more than $60,000 and her annual income is less than $40,000; plus she has credit card debt.
The house is scheduled for auction in less than two weeks.
The attorney she consulted had her sign a long retainer agreement giving him a fee of $24,000: payable at $1,000 per month for 24 months and giving the attorney (believe it or not) a mortgage on the woman's home to secure his fee. The retainer mentioned sending the husband's death certificate to the lender's attorneys, which should delay the eviction since the deceased husband is a named party to the lawsuit whose death, technically, freezes the lawsuit. The retainer also mentioned some other steps the attorney might take, including advising the woman to go bankrupt. None of which should cost $24,000.
Basically the attorney told her that while she paid him $1,000 each and every month, he'd keep her in the house. But none of that money would go to the bank, so at the end of 24 months she'd still owe the lender 24 more monthly mortgage payments. Interestingly, the lender had offered to take the house in exchange for erasing her mortgage debt - maybe a good deal if the house is worth less than the amount owed. Also, I suggested that she might consider bankruptcy right away (rather than at the end of 24 expensive months). She could give back the house and/or declare bankruptcy (especially considering her other debts) hiring a less greedy attorney for way less than $24,000, and use the rest of her money for rent elsewhere.
By the way, this attorney solicited the woman through the mail, apparently obtaining a list of houses being foreclosed or auctioned off (which is a public record) and writing to those unfortunate homeowners, offering his legal services.
So I did what any smart personal injury lawyer would do. I referred the niece to a trusted friend and fellow attorney who handles bankruptcy and debt problems and could help her for far, far less than $24,000, an amount which shocked me and still has me shaking my head.
ATTORNEY DISCIPLINE Matter of Arelia M. Taveras Second Department
Admitted to N.Y.S. Bar: 2002 Discipline imposed: Disbarred (on default) in June 23, 2007 There is a wonderful word in the Yiddish language that many of you may know: chutzpah. Simply put, chutzpah translates into "colossal nerve." A classic example of chutzpah – in a legal context – is that of a man who murders his parents and then begs the judge for mercy because he is an orphan. The disbarment case I wish to discuss has taken a recent turn from fabulous greed and larceny resulting in the disbarment of attorney Taveras, into Chutzpahville, truly a strange place to visit. According to newspaper reports, Taveras had a fairly lucrative and successful law practice representing the families of airplane accident victims. Her short legal career was highlighted by appearances as a T.V. commentator and by being named one of the "21 New Yorkers to Watch in the 21st Century" by the New York Daily News in the year 2000. Her fall from grace starts (sort of) on February 20, 2007, with Ms. Taveras’ suspension from the practice of law by the Appellate Division, Second Department. This was a rather unusual early or immediate suspension, intended to protect the public. The Court found that Taveras, "[w]as guilty of professional misconduct immediately threatening the public interest based upon uncontroverted evidence of professional misconduct." The Court also appointed a Special Referee (a retired judge) to look over Taveras’ files and take action to protect her clients. Taveras did not fight the five charges made against her by the lawyers’ Grievance Committee, which were: *engaging in a pattern and practice of converting escrow funds entrusted to her as a fiduciary (in other words, stealing), *knowingly providing altered and falsified records of her attorney escrow account to the Grievance Committee, *improperly commingling personal and fiduciary funds (mixing clients’ money with her personal money), *improperly drawing an escrow check to cash, *failing to maintain required records for her IOLA (escrow) account. She was found in default and deemed to have admitted the truth of the charges against her. Then she was disbarred. This story is not nearly over. We now turn to a press release from the Queens County District Attorney, issued on November 28, 2007, which has the following heading: "D.A. BROWN: TWO QUEENS ATTORNEYS CHARGED WITH RAIDING THEIR
ESCROW ACCOUNTS AND STEALING NEARLY $200,000 FROM CLIENTS" District Attorney Brown said, "According to the charges, the defendants not only violated the trust that their clients placed in them but they let down the entire legal system which counts on members of the bar to conduct themselves in an ethical matter. Each of the attorneys has been disbarred, and each now faces serious criminal charges." District Attorney Brown identified the defendants as Arelia Taveras, 46, presently of Bloomington, Minnesota, and Mark Jacobs, 58, of Glen Head, New York. Taveras, accused of stealing a total of $99,142 from four clients, was charged with three counts of third-degree grand larceny, second-degree forgery, first-degree offering a false instrument for filing and scheme to defraud. Jacobs was charged with second-degree grand larceny for allegedly stealing $91,564 from a client. If convicted, Taveras faced up to seven years in prison. I’m sure you may not care how Taveras ended up in Minnesota. But I’m wondering. District Attorney Brown also said that, according to a criminal complaint, Taveras accepted $2,500 from a buyer as a contract deposit and an additional $22,500 as a down payment on a cooperative apartment in Bayside that the defendant was selling. It is alleged further that the buyer’s application was subsequently denied by the cooperative board, but when she tried to get her deposit back Taveras allegedly refused. After numerous requests, according to the criminal complaint, the buyer received a call from Taveras’ lawyer stating that she would not repay the money and that she was in a rehabilitation center in Colorado. In addition, according to the criminal complaint, Taveras is accused of ripping off three clients including one who retained her in connection with a real estate transaction. The complaint charges that Taveras failed to release $10,000 of the client’s money that was held in escrow. Another client was allegedly bilked of $30,000 after retaining the defendant to represent her in the sale of commercial real estate. And finally, Taveras is accused of stealing $34,142 from a third client who allegedly retained her to represent him in connection with a divorce proceeding. The criminal charges against Taveras are unresolved and still pending. Now this story gets more interesting. Taveras had sent a videotape to the lawyers’ Grievance Committee saying that she took client money because of a gambling addiction and that she was remorseful. Today the papers are reporting that Taveras has filed a $20,000,000 Federal lawsuit in United States District Court in New Jersey against seven casinos, claiming that they were responsible for her compulsively gambling way $1,000,000 and that they should have stopped her. (This is the chutzpah part.) Taveras says her gambling problem was so over-the-top that she once spent five straight days at Resorts Casino’s tables in Atlantic City eating only chocolate candy bars and drinking orange juice. She claims that she would go for days and nights without food or sleep. While she gambled in Las Vegas as well as Atlantic City, Taveras claims to have suffered the most damage at Resorts in Atlantic City, supposedly losing $850,000 there in two years. According to her complaint, Taveras even played seven blackjack hands at one time so she could have an entire table to herself, while losing some $5,000 per hour. Commentary: Compulsive gamblers suing casinos rarely win, because the casinos claim not to know who needs help and who doesn’t. Gamblers can voluntarily bar themselves from casinos, either for a few years or for life. While they are on the list, casinos cannot solicit them. Taveras, of course, never did this. The short of it is, that courts are reluctant to find that a casino has a duty to protect a gambler from herself. From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx)
Matter of Keith G. Rubenstein First Dept.
Admitted to Bar: 1991 Discipline imposed: Disbarred On May 29, 2002 Rubinstein signed an employment agreement with Gem & R Management Corp., owned by a non-attorney. He agreed to be a front for Gem & R’s personal injury practice and acted as such from May 2002 through December 2004. Gem & R. was owned by one Simon Garber, the owner of several hundred taxi medallions. Gem & R had complete authority to accept or reject clients and to set legal fees, controlled the files and checkbooks, and had paralegals that did all the legal work. Rubinstein also filed approximately 180 false retainer statements with the N.Y.S. Office of Court Administration indicating "self" as the source of case referral, when all his clients had come from Gem & R. Rubenstein admitted that it was even possible that he was the attorney of record on personal injury cases of which he was unaware; but that he had expanded from real estate into personal injury when his law practice was not going well and he was in the midst of a divorce The Appellate Division held: Even though no clients were harmed, he is guilty of serious professional misconduct, including allowing non-attorneys to exercise control over his law practice, maintaining escrow funds in a non-escrow account, and falsely holding himself out as partner with another attorney who has since been disbarred. Noting Rubinstein’s, "Total abdication of control over his practice to non-attorneys," the Court disbarred him. Commentary: Don’t cry for this ex-attorney: he’s a principal of real estate firm Somerset Partners, and all indications are that he’s very wealthy now, having outbid Madonna for a $35 million Upper East Side townhouse that he is planning to gut, renovate and then live in. For more on the ills of cavorting with non-lawyers on personal injury lawsuits see my free book, Good Lawyers Don’t Call You First. From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx)
Matter of James P. Colliton First Dept.
Admitted to Bar: 1989 Discipline imposed: Disbarred This one ends with a whimper, rather than a bang. Attorney Colliton worked at the top law firm of Cravath Swaine & Moore, earning, like, half-a-mil ($500,000) a year. He had a wife and kids upstate in Poughkeepsie, and spent his days perusing the complexities of our tax laws. Colliton, age 39, had a taste for underage girls. You may remember this case from the newspapers. Arrested in September, 2006, Colliton claimed that the two teenage sisters that he had sex with, aged 13 and 15, were pimped to him by their mother. Before he could be arrested this mutt tried to run away. He ran to Toronto, Canada, but was released due to a communication foul up. He fled back to Manhattan. Finally, he was arrested alone in his room at a flea bag hotel in Manhattan. This criminal mastermind made the desk clerk suspicious when he tried to register under two different names. He was recognized, and the cops called. According to Manhattan District Attorney Robert Morgenthau, Colliton was carrying identification in the name of "James Sullivan," and "had a bag with a lot of cash in it and a lot of American Express gift cards."
Finally, as related by the Departmental Disciplinary Committee: On October 2, 2007, respondent [Colliton] pleaded guilty in Supreme Court, New York County, to rape in the second degree in violation of Penal Law § 130.30(1), a class D felony, and to patronizing a prostitute in the third degree in violation of Penal Law § 230.04, a class A misdemeanor, in full satisfaction of Indictment No. 0861-2006. On that same day, respondent also pleaded guilty to rape in the third degree in violation of Penal Law § 130.25(2), a class E felony, in full satisfaction of Indictment No. 1748-2006. The charges to which respondent pled guilty alleged that he engaged in sexual intercourse with a person who was less than 15 years old and a person who was less than 17 years old, and that he patronized a prostitute who was less than 17 years old. On October 11, 2007, respondent was sentenced to a term of imprisonment of one year on each charge, to be served concurrently, and was required to register as a sex offender. And the case ends with a whimper: Upon conviction of a felony, Colliton was automatically disbarred, and so holds the Departmental Disciplinary Committee. Commentary: This rather dry opinion marks the end to a high-paying legal career. It being well known that prison is particularly tough for child molesters, one can only wonder as to how tough prison will be for a child-molesting tax attorney. From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx)
Matter of Michael Caliguiri Appellate Division, First Dept.
Admitted to Bar: 1980 Discipline imposed: One year suspension From 1984 until 2003 Caliguiri was employed by Garbarini & Scher, a law firm that mostly represented doctors and hospitals sued for medical malpractice. In 1999 Caliguiri became the firm’s managing partner. Medical Liability Mutual Insurance Co. (MLMIC), a huge insurer of doctors, was one of the firm’s major clients. In light of Caliguiri’s expertise, a neighbor of Caliguiri’s asked him to answer medical malpractice questions from one of his partners, for which no money changed hands. Caliguiri knew that the defendant doctor being sued by the neighbor’s law firm was insured by MLMIC. Caliguiri’s wife worked for MLMIC and secretly copied MLIC’s confidential file on the neighbor’s law firm’s case and gave it to Caliguiri. Both Caliguiri and his wife testified that she did this without Caligiuri asking her to do so. Caliguiri looked at the file, which confirmed his opinion that MLMIC would not voluntarily settle the case because it felt it could successfully defend it. The neighbor’s law firm disclosed Caliguiri’s participation to MLMIC and the medical malpractice case was settled. At the end of 2005 Caliguiri left Garbarini & Scher over "philosophical differences." One month later his wife was fired by MLMIC. Caliguiri says: The opinion he gave about the way the case would proceed was the same before he read the documents as after – he did not formulate his advice based on something he learned from the file. The Appellate Division found: that while it believed that Caliguiri never requested the copy of MLMIC’s file and his wife copied it on her own, he should never have looked at it. Despite the fact that Caliguiri made no money (no personal gain) the Appellate Division held that his conduct violated the attorney-client privilege – that he should have kept secret his client’s confidential information, even though his firm was not representing the client for that case. Commentary: The Court actually toyed with imposing a longer suspension, but found that in addition to not gaining financially from his misconduct, Caliguiri showed "profound remorse" and had suffered devastating financial and personal consequences. Plus he had a clean disciplinary record, this being his first infraction in an otherwise clean 25-year legal career. From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx)
I never tire of cases where lawyers get their butts kicked for not filing tax returns. I pay my taxes, why shouldn’t they? I particularly like when tax lawyers get prosecuted for not filing tax returns. Following is discussion of just such as case. John Howley, a former partner at the fancy schmancy blue chip Manhattan law firm of Kaye Scholer, once argued a tax case before the United States Supreme Court. He lost. Even though he lost, he still should have known to file New York State tax returns, despite living in New Jersey. He was prosecuted for failing to file returns for several years spanning the late 1990's and early 2000's. For a guilty plea, he avoided jail time, and agreed to pay $154,626 in back taxes and penalties and a $10,000 fine. In return, he got a conditional discharge, which means the charges eventually will be dropped if is a good boy and stays out of trouble. Will he keep his law license? Stay tuned dear blawg readers. Commentary: While the authorities have a zillion ways to collect taxes, it is ont a crime to fail to pay taxes, only to fail to file a tax return. From: Bronx injury lawyer Gary E. Rosenberg (personal injury and accident attorney and lawyer; also serving Brooklyn and Queens)
Matter of Christopher W. Meyers Second Dept.
Admitted to Bar: 1989 Discipline imposed: Resignation from Bar accepted THE FACTS The respondent resigned from the Bar (gave up being an attorney) in the face of a pending investigation by the Grievance Committee into his professional misconduct. Several of his clients alleged neglect of legal matters and/or conduct involving dishonesty, fraud, deceit or misrepresentation. He is also the subject of a complaint of a staff member of the Mental Health Association of Westchester that he failed to account for funds that he maintained in trust for an individual for whom the Mental Health Association was subsequently appointed to manage finances. Meyers admitted that he engaged in fraudulent conduct to prevent discovery of his personal use of trust fund money without permission. Commentary: The courts take seriously lawyers’ handling of money that’s not theirs. Usually we receive money to hold in trust or escrow as part of a real estate deal or settlement of a personal injury case. Playing with client trust or escrow money almost always results in disbarment, which probably would have happened here if Meyers hadn’t resigned first. Note that he still has to pay back the money. The courts take seriously lawyers’ handling of money that’s not theirs. Usually we receive money to hold in trust or escrow as part of a real estate deal or settlement of a personal injury case. Playing with client trust or escrow money almost always results in disbarment, which probably would have happened here if Meyers hadn’t resigned first. Note that he still has to pay back the money. It’s sad that a lawyer’s professional career goes down the drain because of greed. Frequently this happens because of money troubles relating to some sort of substance problem or addiction; we don’t know if that is the case here. From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx) New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx)
NEW YORK REGION | August 2, 2007
New York:
A Manhattan lawyer pleaded guilty yesterday in State Supreme Court to obtaining clients in personal injury cases from a go-between and lying to the state Office of Court Administration to hide the arrangement, prosecutors said. The lawyer, David Sheeger, 50, was charged with offering a false instrument for filing by paying the go-between to bribe hospital workers to obtain information about patients who had been treated for accidents, typically car accidents, said Robert M. Morgenthau, the Manhattan district attorney. The go-between, who was paid $500 per case, would contact the patients on behalf of Mr. Sheeger’s law firm, Mr. Morgenthau said. It is illegal in New York for lawyers to accept referrals from nonlawyers. Mr. Morgenthau said that Mr. Sheeger had obtained 67 cases using a go-between from April to November 2002. After his plea, Mr. Sheeger was disbarred, placed on probation and ordered to forfeit $110,000 obtained through the scheme, prosecutors said. www.NYTimes.com Commentary: Personal injury attorney paying "runners" or "chasers" for cases: illegal and leads to fraud on a grand scale. Please hire an attorney you find yourself, through the recommendation of friends, family, or trusted professionals. For more information see my free book: GOOD LAWYERS DON’T CALL YOU FIRST available at www.GreatLegalBooks.com Personal injury attorney paying "runners" or "chasers" for cases: illegal and leads to fraud on a grand scale. Please hire an attorney you find yourself, through the recommendation of friends, family, or trusted professionals. For more information see my free book: available at From: Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx)
Joseph Levine, a 59-year-old recently disbarred attorney from Hewlett, Nassau County, New York is under arrest and has been charged with stealing in excess of $300,000 from two clients who he was supposed to be representing over the course of the past year. The charges against him are Second and Third Degree Grand Larceny and two counts of Second Degree Criminal Possession of a Forged Document
In evidence in the complaint states that in December of 2006, the defendant advised a resident of the Nassau County Village of Rockville Center to settle for $300,000 in relation to a personal injury lawsuit. Then on December 25, he visited the office of the insurance company in Pennsylvania and pressured them to issue a check because, according to him, the client had a daughter who needed the money to pay for heart surgery. They issued the check to the defendant in the name of his client. He then forged the signatures of both the client and her husband and proceeded to deposit the check into his bank account. The bank's records show that he did deposit $300,000 on December 28,2006.
By the time March rolled around, his bank account stood at -$139.44 and the clients never received any of their settlement money. The Nassau County's District Attorney's Office was notified on March 19, 2007.
Also, in May of 2007 a woman from the town of Elmont in Nassau County was buying a house and the real estate agent gave her a list of attorneys to select from and she choose Levine. She gave him $10,000 to hold as a down payment on the house, but the sale did not go through and she asked for the return of her money. Levine said he wanted to hold on to the money just in case he could resurrect the deal, She continued to keep in contact with him throughout the summer, but as of yet has not received a refund. The District Attorney received a complaint on September 12, 2007.
Levine filed an affidavit of resignation form the Bar on April 6, 2007 and he was disbarred on June 26,2007. If he is convicted, he faces a maximum sentence of 15 years.
Source: Nassau County DA http://www.nassaucountyny.gov/
Commentary: Levine had already quit as a lawyer in the face of allegations against him of theft, but kept acting as an attorney and stealing. He couldn’t have thought for even a second that he would get away with this. The whole story of why he did this remains to be told. Let him tell it from a prison cell, during a long incarceration.
From: Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx) Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx)
Matter of Thomas A. Bruno; Second Dept.;
Admitted to Bar: 1968; Discipline imposed: Two year suspension; THE FACTS: The Grievance Committee served the respondent (Bruno) with a petition dated Aug. 2, 2005, containing two counts of professional misconduct, related to his handling of a divorce case. The respondent represented the husband in a matrimonial action pending in the Supreme Court, Suffolk County. He was served with discovery demands pertaining to his client’s business. In his reply, the Bruno stated that his client’s business "went under" for lack of contracts and work. He failed to provide any requested business documents, claiming that the corporate records were already in possession of the wife inasmuch as the marital residence was the former place of business. After the commencement of trial, the wife’s lawyer claimed to have recently ascertained that the husband had received in excess of $105,000 in accounts receivable subsequent to the commencement of the divorce action and that those funds were received as checks payable to the respondent, as attorney for the husband's business. That information was allegedly never disclosed during discovery. On or about Oct. 7, 2002, the wife’s attorney moved for sanctions against (asked the Court to punish) the husband and Bruno (his lawyer). By order dated Nov. 22, 2002, the divorce judge found that the husband's responses to the wife's discovery demands were inaccurate and evasive and that both the husband and Bruno knew of the existence of certain business records concerning, at least, the admitted "collection efforts" and "winding up" of the business, and failed to comply with clear requests for disclosure of same. The court found the husband's failure to disclose information concerning the requested receipts of the corporation to be willful and contumacious and awarded an attorney's fee in the sum of $5,000 to the wife THE PUNISHMENT: Attorney’s mitigating factors to be considered: Bruno asked the Disciplinary Committee to consider the following factors in mitigation of any discipline to be imposed: the stress experienced in representing his client throughout a contentious matrimonial litigation and numerous civil suits relating to the client's corporate and business dealings, including defending him in a lawsuit for $2,000,000 in the Supreme Court, Nassau County; the respondent's emergency hospitalization in August 2000 for an aortic aneurysm with mild emphysema; his insistence that his client was not conducting any business at the time his responses to the discovery requests were made; his denial of any knowledge of the $200,000 in accounts receivable supposedly collected by his client; his good faith belief that all of the answers he submitted were accurate and truthful when made; complications arising from the fact that pertinent records were located at the marital premises and were, at all times, within the possession of his adversary and her client; and the fact that the divorce judge did not refer to his actions as willful and contumacious and did not impose monetary sanctions upon him. Bruno indicated that he relocated to Texas for health and family reasons and did not expect to return to New York. Disciplinary Committee’s aggravating factors to be considered: He was suspended from the practice of law from 1981 to 1986 "due to a mental disability." He was issued four Letters of Caution between Oct. 19, 1991, and May 23, 2003, for failing to re-register; lack of diligence in completing matters entrusted to him and in responding to reasonable client requests for information or for specific action to be taken on their behalf; failing to attend to client matters in a prompt, professional fashion and neglecting his obligation to do so; and for failing to cooperate with the legitimate investigations of the Grievance Committee for the 10th Judicial District. The respondent was also issued three Letters of Admonition, dated May 23, 2003, for: (1) failing to cooperate with both the Suffolk County Matrimonial Fee Arbitration Panel and the Grievance Committee for the 10th Judicial District, (2) failing to promptly refund an unearned fee and failing to cooperate with both the Suffolk County Matrimonial Fee Arbitration Panel and the Grievance Committee for the 10th Judicial District, and (3) failing to communicate with the complainant and to provide her with a status update and, again, failing to cooperate with the Grievance Committee. Most recently, the respondent was issued a Letter of Caution on Jan. 5, 2005, for failure to register. THE HOLDING: While the wife's settlement allegedly was not unduly jeopardized by the respondent's failure to properly disclose, the respondent's conduct delayed the proceeding and should not be condoned. The respondent's move to Texas does not absolve him from liability for professional misconduct committed while he was practicing law in New York. In view of the mitigation advanced as well as the respondent's prior disciplinary history, the respondent is suspended from the practice of law for two years. Commentary: If the discipline seems a little harsh, I believe it is. This attorney has a long history of minor disciplinary actions against him, including his 5-year mental health hiatus (suspension) which an attorney only does if there are complaints against him or her. Furthermore, the Disciplinary Committee may have felt that the attorney was trying "to pull a fast one" with his Texas move. Really, there is nothing to prevent his coming back to New York and re-starting his practice; the court’s decision noted that he was not licensed to practice law in Texas. If the discipline seems a little harsh, I believe it is. This attorney has a long history of minor disciplinary actions against him, including his 5-year mental health hiatus (suspension) which an attorney only does if there are complaints against him or her. Furthermore, the Disciplinary Committee may have felt that the attorney was trying "to pull a fast one" with his Texas move. Really, there is nothing to prevent his coming back to New York and re-starting his practice; the court’s decision noted that he was not licensed to practice law in Texas. In light of the attorney’s age (he was admitted to the practice of law in 1968) a 2-year suspension may be the Disciplinary Committee’s indirect way of urging him to retire from the practice of law forever. From: Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx)
Note: A deposition is an oral question and answer session where one side asks the other side questions about its position in a lawsuit. It is a common procedure in most civil (non-criminal) litigation.
A NEW YORK judge has ordered court supervision of a lawyer for "objectionable conduct" toward a female opposing counsel who he said had a "cute little thing going on" during a deposition. According to transcripts of the deposition, Thomas B. Decea of Danzig Fishman & Decea in White Plains also called Michelle A. Rice of Arkin Kaplan & Rice "hon" and "girl" and asked her why she was not wearing a wedding ring. Manhattan Supreme Court Justice Carol Edmead ruled last week that a special referee would oversee all future depositions in the case to monitor Mr. Decea's conduct and that all depositions would take place in the courthouse. The judge said Mr. Decea's behavior reflected gender bias as well as "a lack of civility, good manners and common courtesy." She said the appointment of a referee was a means of "guarding against future objectionable conduct" by Mr. Decea. Ms. Rice moved for the appointment of a special referee a few days after the end of the depositions, arguing that Mr. Decea's conduct was intended to intimidate her and interfere with her advocacy in violation of New York's Code of Professional Responsibility as well as court rules adopted last year proscribing obstructive behavior at depositions (NYLJ, July 26, 2006). Mr. Decea had opposed the motion on the grounds that he was "not aware of any rule or law which requires civility between counsel." The judge described his contention as "baffling." She also noted that a number of judges had in the past been publicly reprimanded for referring to female lawyers as "little girl" or "young girl." She pointed out that the Commission on Judicial Conduct had said such words were "calculated to demean the lawyer." Though the judge pointed out that conduct like that of Mr. Decea had been found sanctionable in the past, Ms. Rice did not seek sanctions against Mr. Decea. "We felt the most measured response to his inappropriate behavior was supervision of his behavior going forward," she said yesterday. Commentary: Mr. Decea is lucky that his adversary did not ask for monetary sanctions, his conduct was outrageous enough that the judge might have granted them. As it is, he will likely have to pay the cost of the referee, a lawyer or retired judge who will likely charge a healthy hourly fee. What he really needs is a good lesson in manners, and perhaps a spanking by his mother. Mr. Decea is lucky that his adversary did not ask for monetary sanctions, his conduct was outrageous enough that the judge might have granted them. As it is, he will likely have to pay the cost of the referee, a lawyer or retired judge who will likely charge a healthy hourly fee. What he really needs is a good lesson in manners, and perhaps a spanking by his mother. From: Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx)
Attorney Harold Meyerson was punished recently by the lawyers’ Department Disciplinary Committee. Types of official lawyer punishment: He received a "public censure." This is the lightest form of public punishment that an attorney can receive. It means that the public can hear about it and say "tsk, tsk" or "shame, shame." Lighter punishments than public censure are private censure and admonishment. On the "heavier" side are license suspensions and disbarment, which interrupt the attorney’s right to practice law. Facts: Meyerson’s misconduct occurred during a five-month period of time in the early part of 2003. During that time, his solo practice consisted of a high volume of personal injury matters, matrimonial and criminal defense cases, and general business litigation. He admitted that he paid Emil Izrailov a sum of money for referring clients to him who had been involved in motor vehicle accidents and who were receiving treatment from I.K. Medical, PC, a clinic run by Izrailov. He paid Izrailov’s clinic $800 for a narrative medical report of any patient referred to him by the clinic whom he accepted as a client. These reports were prepared by a physician and described the client’s injuries, related those injuries to the accident, and set forth the course of treatment and prognosis. Meyerson testified that providing these reports to the insurance carrier in the early stages of settlement negotiation process usually resulted in early and favorable results for his clients. He also stated that if he referred any client to the clinic, there was no charge for the narrative medical report. Between February and June 2003, Meyerson paid for approximately eleven narrative reports and referred two clients to the clinic who were not charged when he ordered their narrative reports. Two of the 11 clients for whom Meyerson purchased narrative reports did not continue treatment with Izrailov and decided against pursuing lawsuits. Izrailov refunded the cost of those reports. Meyerson denied paying Izrailov any money other than for the cost of the reports and believed that it would be necessary to purchase these reports at some point in the litigation in order to pursue settlement negotiations on behalf of his clients. While acknowledging that this type of arrangement could be viewed as an improper exchange, he claimed not to appreciate that fact at the time. In fact, he believed it was beneficial to his existing clients because they would receive free narrative reports if he referred them for treatment to one of Izrailov’s clinics. During the 5 month period in question, he estimated that he was retained by approximately 30 patients referred by Izrailov. He resigned from these cases after his arrest to avoid what he believed to be a potential conflict of interest. The Disciplinary Panel noted that, unlike those situations where attorneys paid money to the solicitor for each client referred, Meyerson agreed to purchase a narrative report in exchange for each referral that resulted in his retention. The Panel went on to note that the "evidence is compelling that the clients needed these reports in order to pursue their claims and would, in any event, have had to purchase them from another provider, if not Izrailov." Significantly, the Panel found that the $800 paid for each report was "the market price for such reports at the time." Noting the "unusual aspects" of this arrangement, including the fact that these reports would be provided free of charge if an existing client sought treatment from Izrailov’s clinic, thus benefitting the client, the Panel found Meyerson’s arrangement to be qualitatively different from the classic solicitation scenario. While Meyerson, a 61-year old experienced attorney should have known that his arrangement with the clinic for client referrals under the apparent guise of paying for narrative reports was unethical and illegal, he expressed genuine remorse for his misconduct and testified that he has essentially stopped practicing law until the conclusion of these proceedings. The Panel also said: Moreover, this matter is distinguishable from Matter of Ehrlich, [252 AD2d 73 (1998)], where the attorney paid a hospital employee to solicit clients for him by handing out Ehrlich’s business card to patients. The respondent in Ehrlich obtained 30 clients over a two-year period as a result of this arrangement and terminated the scheme because of the "low monetary value of the cases." In confirming the recommendations of a three-month suspension, we noted that Ehrlich only ended his scheme because it was unprofitable, only began cooperating after being caught, and nearly three dozen instances of solicitation were involved during the two-year period. Here, Meyerson testified that he did not think he was harming his clients by paying for the narrative reports that he ultimately needed in order to settle their claims expeditiously, and the Hearing Panel found he had provided truthful testimony. My opinion: Meyerson got off easy. What he did was not "qualitatively different from the classic solicitation scenario." Meyerson probably got a light punishment because of his age and clean record; also he hired as his attorney a former employee of the lawyers’ Department Disciplinary Committee. He was also smart in admitting his misconduct and withdrawing from the improperly obtained cases. I believe the Panel was incorrect in finding that $800 was the usual price for narrative medical reports, especially since doctors usually prepare them anyway, and send them to automobile insurance carriers at no charge in order to be paid for treating car accident victims. Literally, all that Izrailov’s clinic had to do was change the name of the recipient of the report – hardly worth $800. And $800 is rather high for any medical reports, they tend to go for $300 to $500, although they can cost as much as $1,000 for a report by a medical specialist. And what about the business of refunding the price of the report for clients who dropped their cases? That’s a dead-on admission that the reports were over-paid for to buy clients, otherwise, if Izrailov’s clinic did $800 worth of work producing a narrative report, why refund the money? If you're intersted in lawyer misdeeds, you may want to go to my web site www.GreatLegalBooks.com and order my free book: "Good Lawyers Don't Call You First." Also, keep checking this blog for future reports on lawyers who get caught with their hands in the cookie jar. They give the legal profession a bad name.
A disbarred lawyer pleaded guilty on October 30, 2007 in Manhattan to stealing $148,000 from at least 20 clients. The ex-lawyer, Richard Boter, has agreed to a sentence of at least one year in prison and to pay $160,000 in restitution and forfeiture, according to the Manhattan District Attorney’s Office. Mr. Boter was the twelfth attorney to be netted by that office’s probe into the use of "runners" by personal injury lawyers to bribe hospital employees to gain access to potential clients. Mr Boter had purchased cases from various runners, at least one of whom had bribed hospital employees to gain confidential information about patients. To date, the 12 lawyers caught in the investigation have agreed to pay restitution or forfeiture of$1.7 million. With regard to Mr. Boter, who was disbarred last month, the District Attorney's office said he had stolen client funds by keeping their share of settlement proceeds. He was able to do that by settling cases without his clients' permission and then forging their signatures on release forms forwarded to insurance companies to obtain the release of the settlement funds, the office said. This is not a terribly smart way to steal, since in New York State insurance companies are required to mail letters directly to an injured person settling a claim, telling the injured person that a settlement check is being mailed to his or her attorney, and giving the amount of the check. A copy of this letter is also sent to the injured persons's lawyer. This makes Mr. Boter's crime particularly stupid and unlikely to be attempted by other lawyers. I hope.
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