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.
Decided on November 27, 2012
SUPREME COURT, APPELLATE DIVISIONFirst Judicial Department
Angela M. Mazzarelli,Justice Presiding, David Friedman Leland G. DeGrasse Helen E. Freedman Sheila Abdus-Salaam,Justices.
Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department. Respondent, Michael S. Etkin, was admitted to the Bar of the State of New York at a Term of the Appellate Division of the Supreme Court for the First Judicial Department on April 9, 1979.
Respondent Michael S. Etkin was admitted to the practice of law in the State of New York by the First Judicial Department on April 9, 1979. At all times relevant to this proceeding, respondent maintained an office for the practice of law in New Jersey where he was admitted in 1981.
The Departmental Disciplinary Committee (Committee) seeks an order, pursuant to 22 NYCRR 603.3, suspending respondent for three months nunc pro tunc to January 4, 2012, predicated upon similar discipline imposed by the Supreme Court of New Jersey (In re Etkin, 31 A3d 622 [NJ 2011]), or in the alternative, sanctioning respondent as we deem appropriate.
Respondent's misconduct, his failure to safeguard a legal fee that belonged to his former law firm, initially came before the Supreme Court of New Jersey Disciplinary Review Board (DRB) based on an August 2007 disciplinary stipulation between respondent and the New Jersey Office of Attorney Ethics (OAE). Respondent stipulated to violations of New Jersey RPC 1.15(b) (failure to promptly notify a third person of receipt of funds in which the third person has an interest), RPC 1.15(c)(failure to safeguard funds in which an attorney and a third person claim interests), and RPC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation). The OAE recommended that the appropriate discipline to impose was a reprimand.
The stipulated facts are as follows: from April 1998 to February 2000, respondent was a non-equity partner of the law firm Ravin, Sarasohn, Cook, Baumgarten, Fisch & Rose P.C. (Ravin firm). On February 12, 2000, shortly before the dissolution of the Ravin firm in April 2000, respondent and 16 other attorneys joined the law firm of Lowenstein Sandler P.C. (Lowenstein firm), his current firm.
While he was with the Ravin firm, respondent had worked on a securities litigation case, In re Reliance. All legal fees generated by respondent were to be paid at the conclusion of that case. After respondent joined Lowenstein, he continued to provide legal services in the Reliance matter and earned legal fees to which Lowenstein was entitled. On February 27, 2003, approximately three years after he left the Ravin firm, respondent was paid in full for his services in the Reliance matter via a check for $217,639.50 payable to Michael S. Etkin, Esq. The Ravin firm's share of this payment was $148,935, while the Lowenstein firm's share was $68,704.50. Respondent did not notify either law firm of his receipt of the check. On March 18, 2003, respondent deposited the $217,639.50 check into his personal bank account which then had a balance of about $13,000. On April 1, 2003, respondent gave the Lowenstein firm its share of the fee via a bank check in the sum of $68,704.50. Respondent did not tender to the Ravin firm its share of the fee.
On April 21, 2003, respondent transferred $110,000 from his bank account to his personal money market account. According to the stipulation, $110,000 represented the approximate amount of the Ravin firm's fee less respondent's claim for unpaid salary. The funds remained in the money market account for 17 months after respondent had received the $217,639.50 check. During the interim, the balance in the account fell below $110,000 on 23 occasions. Respondent stipulated that the shortages, which ranged from $280.10 to $34,100.83, were the result of his issuing checks for personal expenses, ATM withdrawals, or transfers to another personal bank account ...