In the Matter of Lawrence Ivan Horowitz, an attorney and counselor-at-law. Grievance Committee for the Ninth Judicial District, petitioner; Lawrence Ivan Horowitz, respondent. (Attorney Registration No. 2131316)
DISCIPLINARY PROCEEDING instituted by the Grievance Committee for the Ninth 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 July 7, 1987. By decision and order on motion of this Court dated January 10, 2012, the Grievance Committee for the Ninth Judicial District was authorized to institute and prosecute a disciplinary proceeding in this Court against the respondent based upon the acts of professional misconduct set forth in a verified petition dated September 1, 2011, and the issues raised by the petition and any answer thereto were referred to the Honorable Arthur J. Cooperman, as Special Referee, to hear and report. By decision and order on motion of this Court dated January 31, 2012, the issues raised by the petition and any answer thereto were reassigned to the Honorable Jerome M. Becker, as Special Referee, to hear and report.
Gary L. Casella, White Plains, N.Y. (Gloria J. Anderson and Antonia P. Cipollone of counsel), for petitioner.
Richard M. Maltz, New York, N.Y., for respondent.
RANDALL T. ENG, P.J., WILLIAM F. MASTRO, REINALDO E. RIVERA, PETER B. SKELOS, SANDRA L. SGROI, JJ.
OPINION & ORDER
The Grievance Committee for the Ninth Judicial District served the respondent with a petition containing 12 charges of professional misconduct. A verified answer was duly served. The parties thereafter entered into two stipulations encompassing most of the facts in issue, the admission of documents in evidence, and what several witnesses would testify to if called. Following a hearing, the Special Referee sustained Charges 1 through 7 and 10 through 12. Charges 8 and 9 were not sustained. The Grievance Committee now moves to confirm in part, and disaffirm in part, the report of the Special Referee. The respondent cross-moves to confirm in part, and disaffirm in part, the Special Referee's report. Moreover, the respondent asks the Court to impose a sanction no greater than a public censure.
Charges 1 through 3 emanate from a common set of factual allegations. In or about December 2008, Widad Yousef retained the respondent as substitute counsel in her then-pending matrimonial action. In or about October 2009, the respondent moved by order to show cause to be relieved as Yousef's counsel, alleging, inter alia, that she owed him legal fees in the sum of $16, 220. Yousef did not oppose the motion, and the respondent was relieved as counsel by decision and order of the Supreme Court, Westchester County, dated December 17, 2009.
Thereafter, Yousef once again sought the respondent's legal services. On or about March 14, 2010, the respondent and Nicholas Ayoub signed a document entitled "Addendum to Retainer Between Widad Yousef and Lawrence Ivan Horowitz Where Nick Ayoub is the Guarantor" (hereinafter the Addendum). Per the Addendum, the respondent agreed to accept $6, 000 from Ayoub as payment in full for Yousef's outstanding legal fees. He further agreed that in exchange for Ayoub's additional payment of $2, 000, he would perform certain specified legal services on Yousef's behalf. On March 14, 2010, Ayoub gave the respondent three separate checks - a check dated March 14, 2010, in the amount of $4, 000, a check post-dated April 14, 2010, in the amount of $2, 000, and a check post-dated May 14, 2010, in the amount of $2, 000. The petition alleged that as collateral, Ayoub gave the respondent "jewelry with a retail value of $15, 000 to insure the payments listed above." The respondent was to maintain the jewelry in a safe until the $8, 000 was paid in full, at which time he was to return the jewelry to Ayoub.
Each of the foregoing checks was timely deposited into the respondent's account at JP Morgan Chase Bank. The final check cleared on or about May 14, 2010. Between May 19, 2010, and June 2, 2010, Ayoub placed four calls to the respondent from his cellular telephone, each of which lasted one to two minutes. On May 21, 2010, the respondent made one call to Ayoub's cellular telephone, which lasted five minutes. The petition alleged that, upon information and belief, Ayoub placed the calls to the respondent to arrange for the return of the jewelry. Ayoub was trying to get his affairs in order because he knew that his death from lung cancer was imminent. Ayoub died on June 5, 2010. As of that date, the respondent had not returned the jewelry to Ayoub.
Ann Morris is Ayoub's ex-wife, and was his nominated executor. On July 7, 2010, Morris was issued letters testamentary by the Essex County Surrogate's Court in New Jersey. Several days after Ayoub's death, on June 10, 2010, Morris telephoned the respondent and asked the respondent to return the jewelry to Ayoub's estate. She placed two such calls, lasting one and four minutes, respectively. The respondent gave Morris his email address and asked her to provide him with her address. Morris understood that the respondent wanted her address so that he could return the jewelry to her. She emailed her address to him on June 10, 2010.
After one week had passed, and Morris had not received the jewelry, she called the respondent again, on June 16, 2010. This time, the respondent told her that she needed to provide proof that she was the executor of Ayoub's estate. Morris told the respondent that she could provide a copy of the death certificate, which listed her as the executor. The respondent gave Morris his fax number, and she faxed the death certificate to him on June 17, 2010.
Morris did not hear back from the respondent, so she sent him a follow-up email on June 20, 2010, confirming that she had faxed the death certificate listing her as executor, and asking him to call her as soon as possible with respect to returning the jewelry to Ayoub's estate. The respondent did not answer Morris's June 20, 2010, email. As a result, she telephoned him on June 22, 2010. The respondent told Morris that he was with a client, and that he would call her back. However, he did not do so. Morris called the respondent again a few hours later and left a voice message. He did not return her call, so she sent him an email at 5:05 p.m., on the evening of June 22, 2010. The respondent did not respond to Morris's attempts to contact him.
Morris asked an attorney, Jean R. Campbell, to contact the respondent on her behalf and ask that he return the jewelry to the estate. Campbell spoke with the respondent by telephone on or about June 29, 2010. During that conversation the respondent told Campbell that he had returned the jewelry to Ayoub before his death. Campbell asked him to provide her with proof. Campbell memorialized her conversation with the respondent in a follow-up letter, which she emailed, and sent by regular mail, to the respondent on July 5, 2010. The respondent's answering letter, dated July 7, 2010, stated: "As I indicated to you on the telephone, when the last check was cashed, I returned the jewelry to Ayoub." His letter further stated that if she wanted anything more from him, she should file suit, if appropriate.
Morris sought further assistance from the attorney for Ayoub's estate, Vincent R. Kramer, Jr., to secure the return of the jewelry. Kramer sent a letter to the respondent dated July 29, 2010, advising him that he was legal counsel for the Ayoub estate and asking him to ...