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In re Katz

February 24, 2009

IN THE MATTER OF BENJAMIN KATZ ADMITTED AS BENJAMIN ZEV KATZ, AN ATTORNEY AND COUNSELOR-AT-LAW.
GRIEVANCE COMMITTEE FOR THE TENTH JUDICIAL DISTRICT, PETITIONER;
v.
BENJAMIN KATZ, RESPONDENT. (ATTORNEY REGISTRATION NO. 2657674)



DISCIPLINARY proceeding instituted by the Grievance Committee for the Tenth Judicial District. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on April 5, 1995, under the name Benjamin Zev Katz. By decision and order on motion of this Court dated December 19, 2006, (1) the respondent was immediately suspended pursuant to 22 NYCRR 691.13(c), based on his claimed medical disability, until a determination could be made concerning his capacity to continue to practice law; (2) the respondent was directed to be expeditiously examined by a qualified medical expert; (3) the Grievance Committee for the Tenth Judicial District was authorized to institute and prosecute a disciplinary proceeding against the respondent; and (4) the disciplinary proceeding was held in abeyance pending receipt of the medical expert's report. By decision and order on motion of this Court dated July 18, 2007, (1) the suspension based upon the respondent's claimed medical disability was vacated upon the report of the Court-appointed medical expert; (2) the parties were directed to proceed with the previously-authorized disciplinary proceeding; and (3) the issues raised were referred to John P. Clarke, Esq., as Special Referee to hear and report.

Per curiam.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

A. GAIL PRUDENTI, P.J., WILLIAM F. MASTRO, REINALDO E. RIVERA, ROBERT A. SPOLZINO and DAVID S. RITTER, JJ.

OPINION & ORDER

The Grievance Committee for the Tenth Judicial District (hereinafter the Grievance Committee) served the respondent with a petition containing five charges of professional misconduct. After a preliminary hearing on November 29, 2007, and a hearing on February 25, 2008, the Special Referee sustained all five charges. The Grievance Committee now moves to confirm the Special Referee's report and impose such discipline as the Court deems just and proper. The respondent also moves to confirm the Special Referee's findings but requests that a private sanction be imposed upon him.

Charge one alleges that the respondent violated his fiduciary obligations by failing to maintain and preserve client funds entrusted to him in escrow, in violation of Code of Professional Responsibility DR 9-102(a) (22 NYCRR 1200.46).

In or about January 2004, the respondent represented Alan Schraibman, executor of the Estate of Jacqueline Schraibman, in the sale of real property in Woodbury. On or about January 5, 2004, the respondent received, as fiduciary, a down payment in the sum of $17,837 from the purchasers, Wolfram Cisenius and Leona Cisenius. The down payment check was deposited in his IOLA account on January 16, 2004. At the closing on April 20, 2004, the respondent disbursed the Schraibman funds by issuing an IOLA check in the sum of $17,837 payable to Alan Schraibman, as executor. The respondent's IOLA check was posted to the account on April 22, 2004, and was dishonored on April 23, 2004, due to insufficient funds.

The respondent, as fiduciary, failed to maintain and preserve the Schraibman down payment in his IOLA account between January 16, 2004, and April 22, 2004, as evidenced by balances of $262.72, $862.64, and -$13,916.33 on January 31, 2004, February 27, 2004, and March 31, 2004, respectively.

Charge two alleges that the respondent violated his fiduciary obligations by failing to maintain and preserve client funds entrusted to him in escrow, in violation of Code of Professional Responsibility DR 9-102(a) (22 NYCRR 1200.46).

In or about March 2004, the respondent represented Joseph Masterson and Donna Masterson in a personal injury action against Tutor Time Learning Systems, Inc. The parties negotiated a settlement wherein the plaintiffs would receive the sum of $3,500. The respondent received a check in that amount from TIG Insurance Company, dated March 2, 2004, payable to the Mastersons, individually, and to him as their attorney. On March 15, 2004, the respondent deposited the Masterson settlement funds into his IOLA account. He delivered his clients' portion of the settlement fee by issuing a $2,500 check payable to them dated March 25, 2004. Between March 15, 2004, and the date the check was posted, April 16, 2004, the respondent should have maintained and preserved the amount due the Mastersons. The respondent failed to maintain and preserve that amount in his IOLA account as evidenced by a balance of -$13,916.33 on March 31, 2004.

Charge three alleges that the respondent violated his fiduciary obligations by failing to maintain and preserve funds entrusted to him in escrow, in violation of Code of Professional Responsibility DR 9-102(a) (22 NYCRR 1200.46).

In or about March 2004, the respondent represented Argent Mortgage, the lender in a refinancing matter for Rachel Jean-Louis. On March 16, 2004, the gross proceeds of $106,512.45 from the Jean-Louis refinance were wired into the respondent's IOLA account. Between March 17, 2004, and April 27, 2004, the respondent made 11 disbursements from the IOLA account related to this matter. He should have maintained and preserved a minimum of $5,054 in his IOLA account between April 5, 2004, and April 27, 2004. He failed to maintain and preserve that amount as evidenced by the fact that his balance dropped well below that amount on five occasions within that interval. On four of those occasions, the respondent's IOLA account reflected a negative balance.

Charge four alleges that the respondent violated his fiduciary obligations by failing to maintain and preserve funds entrusted to him in escrow, in violation of Code of Professional ...


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