In the Matter of Robert E. Semensohn, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Robert E. Semensohn, respondent. (Attorney Registration No. 1248434)
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 September 13, 1978. By decision and order on motion of this Court dated July 29, 2011, the Grievance Committee for the Tenth Judicial District was authorized to institute and prosecute a disciplinary proceeding the respondent, based upon the acts of professional misconduct set forth in a verified petition dated March 29, 2011, and the matter was referred to the Honorable Patrick A. Sweeney, as Special Referee, to hear and report. By the same decision and order, that branch of the motion of the Grievance Committee for the Tenth Judicial District which was to suspend the respondent from the practice of law on an interim basis was denied.
Robert A. Green, Hauppauge, N.Y. (Nancy B. Gabriel of counsel), for petitioner.
Catherine A. Sheridan, Carle Place, N.Y., for respondent.
RANDALL T. ENG, P.J. WILLIAM F. MASTRO REINALDO E. RIVERA DANIEL D. ANGIOLILLO JOHN M. LEVENTHAL, JJ.
The Grievance Committee for the Tenth Judicial District served the respondent with a verified petition dated March 29, 2011, containing six charges of professional misconduct. Following a hearing, the Special Referee sustained charges one through six. The Grievance Committee now moves to confirm the Special Referee's report and to impose such discipline upon the respondent as this Court deems appropriate. The respondent cross-moves to disaffirm the Special Referee's report. We find that the Special Referee properly sustained charges three through six, but should not have sustained charges one and two.
Charge three alleges that the respondent converted client funds and/or breached his fiduciary duty by failing to preserve client funds entrusted to him in violation of Code of Professional Responsibility DR 9-102(a), (b), and (c) (22 NYCRR 1200.46[a], [b], [c]), as follows:
In or about February 2005, the respondent was retained to represent the interests of Mohibur Rahman in a real estate transaction (hereinafter the Rahman transaction) in which Rahman's corporation was selling a restaurant. The respondent received funds in the sum of $30, 000 as a down payment for the Rahman transaction. The down payment was deposited into the respondent's IOLA account No. *****0417, maintained at Greenpoint Bank, on February 18, 2005. The closing for the Rahman transaction occurred on March 22, 2005. The respondent disbursed the sum of $22, 452.90 from his IOLA account at the closing, as directed by the parties.
At the closing, an escrow agreement was entered into between the parties whereby the respondent would be entrusted with an additional $30, 000 sum, payable by the purchaser towards the purchase price, pending the resolution of certain tax issues. Additionally, after all disbursements were remitted at the closing, there remained a balance of $7, 547.10 in escrow funds from the original down payment, which was to remain in escrow.
The additional sum of $30, 000 was to be paid in three installment payments. As for the first payment, the respondent received $10, 000 from the purchaser, which was deposited into his IOLA account on May 9, 2005. As for the second payment, the respondent received $5, 000 from the purchaser, which was deposited into his IOLA account on June 3, 2005. The respondent did not receive any further payments from the purchaser that were deposited into his IOLA account or otherwise negotiated.
The balance of funds, which the respondent was required to preserve in escrow after disbursements were remitted at closing and payments were received pursuant to the escrow agreement, was $22, 547.10. The respondent did not preserve the funds in an escrow account. The respondent drew down the escrow funds entrusted to him by remitting numerous checks from his IOLA account, issued by him and payable to him.
Charge four alleges that the respondent engaged in conduct that adversely reflects on his fitness as a lawyer by failing to preserve client funds entrusted to him in violation of Code of Professional Responsibility DR 1-102(a)(7) (22 NYCRR1200.3[a]), based upon the factual allegations of charge three.
Charge five alleges that the respondent failed to promptly pay or deliver to a client or third person, as requested by the client or third person, the funds, securities, or other properties in his possession, which the client or third person was entitled to receive, by failing, upon termination of his services, to deliver Rahman's legal file, and the escrow funds that the respondent was required to preserve, to Rahman's new counsel, in violation of Code of Professional Responsibility DR 9-102(c)(4) (22 NYCRR 1200.46[c]), based upon the factual allegations of charge three, as well as the following:
Rahman terminated the respondent's services by letter dated August 23, 2006. He requested in this letter that the respondent forward all "accounts, and relating [sic] documents that you are currently holding as escrow agent and as attorney to the office of Ashok K. Karmaker, Esq." The respondent did not send the file, or the escrow funds, to Rahman's new attorney, in accordance with this letter.
Rahman's new attorney, Ashok K. Karmaker, requested the documents and accounts from the Rahman transaction by letter dated August 23, 2006. The respondent did not send the file, or the escrow funds, to ...