In re Erdheim

191 A.D.2d 105, 600 N.Y.S.2d 3, 1993 N.Y. App. Div. LEXIS 6866
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJuly 1, 1993
StatusPublished
Cited by2 cases

This text of 191 A.D.2d 105 (In re Erdheim) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Erdheim, 191 A.D.2d 105, 600 N.Y.S.2d 3, 1993 N.Y. App. Div. LEXIS 6866 (N.Y. Ct. App. 1993).

Opinion

OPINION OF THE COURT

Per Curiam.

Respondent was admitted to practice at the First Judicial [106]*106Department in 1964, and has maintained an office within this Department for such practice at all relevant times since then. In 1992 he was served by petitioner with a notice and statement of charges specifying 23 incidents of professional misconduct stemming from his relationship with six different clients. These charges consisted of conduct involving deceit, misrepresentation, commingling and conversion of assets, failure to account and maintain proper balances, and engaging in prohibited financial activities with respect to clients. A Hearing Panel sustained 21 of the 23 charges and recommended the ultimate disciplinary sanction — disbarment. Our review of the record leads us to grant the petition, confirm the Panel’s report, and impose the recommended sanction.

Three sets of charges have to do with conduct ranging from improper maintenance to actual misappropriation of clients’ escrow accounts for respondent’s personal use. Three more sets of charges involve improper financial dealings with clients, in the form of solicitation of funds under false pretenses, balances of which are still outstanding. Finally, respondent was charged with failure to cooperate with petitioner’s investigations of these matters.

The Morrissey Charges

Respondent represented Emelda Morrissey in a matrimonial action in the 1980s, winning for his client half of the rather substantial marital property, which included the marital residence. That residence was sold in 1988. The $79,000 down payment was deposited in respondent’s attorney escrow account, but the balance of the proceeds (nearly $642,000), which he had also promised to hold in escrow for his client and her husband, was placed instead in an interest-bearing "special” account under respondent’s control. The escrow account was soon liquidated in respondent’s favor in its entirety, $1,500 accounted for as his closing fee, and the balance of more $77,000 drawn to his personal order and deposited in his checking account. That latter account was soon depleted on debts unrelated to this case. Meanwhile, respondent sent his client a check on the "special” account for nearly $204,000, without any accounting by bill or statement of legal fees to justify his withholding of $135,000 from the client’s share. Bank records established that respondent had shifted $194,000 of the funds in this account to his business checking account.

In August 1988 the client’s husband obtained an order from this Court, freezing his share of the home sale proceeds in the [107]*107escrow account. Notwithstanding that order, respondent withdrew over $300,000 from the escrow account during the next four months, and the remaining $2,300 over the following 16 months. Most of the funds ended up in respondent’s business checking account, from which personal and business expenditures were made, totally unrelated to this case. Three of the transfers were made to respondent’s checking account, coinciding with overdrafts on that account necessitating needs to replenish negative balances.

In 1989 respondent’s client was awarded all of her husband’s property in the divorce action. The client never received her husband’s initially claimed share of $338,000, nor the client’s balance of $135,000, despite repeated demands for release of such funds and an accounting. Respondent led her to believe he had already sent her such accountings, but this was untrue. More than $272,000 remains unaccounted for.

Respondent submitted a document at the hearing purportedly authorizing him to make withdrawals from the special account without notice; this document was determined by the Panel to be a fabrication. Respondent claimed his business account was at all relevant times his escrow account, but that still does not explain the many withdrawals for purely personal purposes from this account, including payments to credit card accounts, dues to his house of worship, college tuition for his daughter, and rent to his landlord.

The Elghanayan Charges

Respondent was retained by Helen Elghanayan in 1989 in connection with a matrimonial action. Prior counsel had obtained a pendente lite award for the client, requiring her husband to make regular maintenance and child support payments. Respondent obtained an order directing these payments to be made directly from the husband’s account to an interest-bearing escrow account maintained by respondent. Two such checks were received in February 1989, totalling more than $164,000. Instead of depositing them into an interest-bearing escrow account, respondent deposited them into his personal savings account, from which he disbursed over $137,000 to the client, or on her behalf, over the next seven months. During this period respondent also made numerous personal and unrelated business transactions from the same savings account, causing the balance to drop below the amount that was supposed to be held for his client’s benefit. The client had no knowledge of these transactions, nor did she [108]*108consent to such an arrangement. Respondent gave two false accountings to the client regarding the status of these funds, and more than $26,000 remains unaccounted for. In the absence of accurate accounting, respondent was unable to convince the Hearing Panel that there were no funds unaccounted for. The Panel also rejected his alternative argument that any apparently missing funds represented unpaid legal fees.

The Cohen Charges

Respondent represented Robert Cohen in a divorce action in the late 1970s. The couple sold their house on Fire Island, and the purchaser’s down payment of $16,000 was placed with respondent as escrow agent, by agreement with the wife’s attorney. Respondent gave several assurances to his adversary counsel and the court that the funds were in escrow, but when it came time to divide these proceeds, adversary counsel had to write five letters to respondent before eliciting a check drawn on his personal checking account, which was returned for insufficient funds. A second check, drawn on his business checking account, was similarly dishonored, and was ultimately replaced with a certified check.

Respondent testified that he had provided adversary counsel with information on the status and location of the funds on several occasions, a representation denied by counsel in her testimony before the Panel. Respondent alternatively argued that at some point after the closing, he was relieved of his fiduciary responsibilities, and the fund thereafter became a mere "accommodation” instead of a true escrow. The Panel correctly rejected this unilateral effort by respondent to escape his escrow responsibilities (see, Matter of Cohn, 118 AD2d 15, 30-31, lv denied 68 NY2d 712).

The Katz Charges

In the most serious set of charges, respondent negotiated a settlement of a divorce action in 1986 in which he received lump-sum payments on behalf of his client in excess of $1 million. Over the next 3 Vz years, respondent requested and received more than $800,000 from his client on the pretense that he would invest this money for her. Over that period he continued to assure her that the money was being safely and gainfully invested. Between June 1988 and July 1991 he sent her periodic checks, ranging in amounts from $5,000 to $10,000, which the client took to represent returns on the [109]*109investments he was managing for her.

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In re Stevens
294 A.D.2d 1 (Appellate Division of the Supreme Court of New York, 2002)
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194 A.D.2d 99 (Appellate Division of the Supreme Court of New York, 1993)

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Bluebook (online)
191 A.D.2d 105, 600 N.Y.S.2d 3, 1993 N.Y. App. Div. LEXIS 6866, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-erdheim-nyappdiv-1993.