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In re Rosenberg

Supreme Court of New York, First Department

May 14, 2013

In the Matter of Neal H. Rosenberg (admitted as Neal Howard Rosenberg), an attorney and counselor-at-law: Departmental Disciplinary Committee for the First Judicial Department, Petitioner, Neal H. Rosenberg, Respondent.

Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department. Respondent, Neal H. Rosenberg, 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 October 22, 1975.

Jorge Dopico, Chief Counsel, Departmental Disciplinary Committee, New York (Vitaly Lipkansky, of counsel), for petitioner.

Michael S. Ross, for respondent.

Luis A. Gonzalez, Presiding Justice, Peter Tom, Sallie Manzanet-Daniels, Nelson S. Román, Paul G. Feinman, Justices.

PER CURIAM

Respondent Neal H. Rosenberg was admitted to the practice of law in the State of New York by the Second Judicial Department on October 22, 1975. At all times relevant to this proceeding, he maintained a principal place of business within the First Judicial Department.

On March 7, 2011, the Departmental Disciplinary Committee (Committee) served respondent with a notice and statement of charges containing six charges, four of which alleged professional misconduct stemming from respondent's misuse of his Interest on Lawyer Account (IOLA account) [1].

Charges one and two of the Committee's statement of charges allege that respondent violated DR 9-102(a) of the Code of Professional Responsibility (22 NYCRR 1200.46[a]), which prohibits an attorney from misappropriating the funds in an IOLA account or commingling them with the lawyer's own funds or the funds of another. Specifically, the Committee alleges that respondent misappropriated funds from his IOLA account by disbursing those funds to himself and others in excess of the amounts to which respondent and others were entitled. The Committee also alleges that respondent deposited personal funds into his IOLA account thereby commingling them with client funds.

Charge three alleges that respondent violated DR 9-102(b)(1) (22 NYCRR 1200.46[b][1]), which prohibits an attorney from using his IOLA account as a business/personal account by making disbursements from his IOLA account for his own personal and/or business purposes.

Charge four alleges that respondent violated DR 9-102(d)(1), (d)(2), and (d)(9) (22 NYCRR 1200.46[d][1], [d][2], and [d][9]), which require an attorney to keep records identifying the clients whose funds are deposited within his IOLA account and detailing all transactions related to such account, by failing to keep a ledger or similar contemporaneous record of all disbursements and deposits related to his IOLA account.

Charge five alleges that respondent violated DR 5-103(b) (22 NYCRR 1200.22[b]), which prohibits an attorney from advancing or guaranteeing financial assistance to a client during the course of pending litigation, by repeatedly advancing funds to his clients while representing them.

Charge six alleges that respondent violated DR 1-102(a)(7) (22 NYCRR 1200.3[a][7]), which prohibits an attorney from engaging in any other conduct that adversely reflects on his fitness as an attorney, by engaging in the misconduct listed in charges one through five.

On April 1, 2011, respondent submitted an answer to the statement of charges wherein he admitted each and every factual allegation therein. Thereafter, on May 6, 2011, the parties appeared for a hearing before a Referee. Respondent's testimony at the hearing, the testimony of three character witnesses, and several documents stipulated in evidence - including, a pre-hearing stipulation wherein respondent admitted liability with respect to all the charges in the Committee's statement of charges and eight letters describing respondent's character - established the following:

In 1981, approximately eight years after graduating from law school, respondent started his own firm, a solo practice focusing on education law. Specifically, respondent, whose firm now employs six attorneys and a 20-person support staff, has specialized in cases where the parents of children with special educational needs seek tuition and/or tuition reimbursement from government entities such as the New York City Department of Education. In June 2008, after the Lawyer's Fund for Client Protection informed the Committee that ...


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