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In re Polow

Supreme Court of New York, Second Department

March 19, 2014

In the Matter of Ian L. Polow, admitted as Ian Leslie Polow, an attorney and counselor-at-law. Grievance Committee for the Ninth Judicial District, petitioner; Ian L. Polow, respondent. Attorney Registration No. 1240233

DISCIPLINARY PROCEEDING instituted by the Grievance Committee for the Ninth Judicial District. By decision and order on motion dated August 23, 2011, this Court ordered, on its own motion, that the Grievance Committee institute and prosecute a disciplinary proceeding against the respondent. The issues raised by the petition and any answer thereto were referred to Hon. Stewart A. Rosenwasser, as Special Referee, to hear and report. The respondent was admitted to the Bar at a term of the Supreme Court in the Appellate Division, First Judicial Department on April 1, 1968, under the name Ian Leslie Polow.

Gary L. Casella, White Plains, N.Y. (Anthony R. Wynne of counsel), for petitioner.

Richard E. Grayson, White Plains, N.Y., for respondent.

RANDALL T. ENG, P.J., WILLIAM F. MASTRO, REINALDO E. RIVERA, PETER B. SKELOS, LEONARD B. AUSTIN, JJ.

OPINION & ORDER

PER CURIAM.

The Grievance Committee for the Ninth Judicial District served the respondent with a verified petition dated September 21, 2011, containing eight charges of professional misconduct. Following a hearing, the Special Referee sustained all eight charges. The Grievance Committee now moves to confirm the Report of the Special Referee, and to impose such discipline upon the respondent as the Court deems just and proper. The respondent opposes the Grievance Committee's motion and requests that the charges be dismissed. Alternatively, the respondent requests that any discipline be limited to a public censure. We find that the Special Referee properly sustained charges one through four and six through eight. However, we find that the Special Referee improperly sustained charge five, and that charge five should not have been sustained based upon the evidence adduced.

The instant charges emanate from the respondent's representation of Mr. and Mrs. Chaim Koppelman in connection with the sale and purchase of real property in New York City between in or about 2007 and July 2009. Relative thereto, the respondent maintained funds on behalf of the Koppelman's in a sub-account of his master escrow account at JPMorgan Chase Bank entitled "Ian Polow Esquire Trust Account." In or about February 2009, the respondent simultaneously maintained funds on behalf of another client in his master escrow account (hereinafter attorney escrow master account) at JPMorgan Chase Bank.

Charge one alleges that the respondent failed to safeguard funds entrusted to him as a fiduciary, in violation of former Code of Professional Responsibility DR 1-102(A) (22 NYCRR 1200.46[a]) now Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.15(a). On or about February 13, 2009, the respondent made a disbursement from his attorney escrow master account relating to the Koppelmans in the amount of $7, 000 by online transfer to the personal account that the respondent holds jointly with his wife. At the time that the respondent made this disbursement, he failed to ensure that he had adequate funds on deposit in his attorney escrow master account relating to this disbursement.

With respect to charge one, we find that the respondent failed to transfer funds from the Koppelman sub-account to his attorney escrow master account, resulting in the unintended invasion of funds held in the respondent's attorney escrow master account on behalf of another client. Accordingly, we find that the Special Referee properly sustained charge one.

Charge two alleges that the respondent failed to safeguard funds entrusted to him as a fiduciary, in violation of Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.15(a). On or about July 14, 2009, the respondent issued check no. 1535 in the amount of $20, 000 from his attorney escrow master account, payable to the NYC Department of Finance, in payment of a mansion tax on behalf of the Koppelmans. On or about December 9, 2009, the NYC Department of Finance attempted to negotiate check no. 1535, but it was returned as a result of insufficient funds. At the time that the NYC Department of Finance attempted to negotiate check no. 1535, the balance on deposit in the respondent's attorney escrow master account was $94.12. In fact, the balance on deposit in the respondent's attorney escrow master account had been depleted as of September 21, 2009, when the balance was only $16, 894.12.

With respect to charge two, we find that the respondent failed to ensure that sufficient funds were on deposit in his attorney escrow master account between on or about July 14, 2009, and December 9, 2009, such that check no. 1535 would clear when presented for payment. Further, we find that the insufficiency of funds was attributable to the respondent's disbursement of fees to himself with respect to his representation of the Koppelmans (see charge three). Accordingly, we find that the Special Referee properly sustained charge two.

Charge three alleges that the respondent engaged in conduct adversely reflecting on his fitness as a lawyer, in violation of former Code of Professional Responsibility DR 1-102(A)(7) (22 NYCRR 1200.3[a][7]) and Rules of Professional Conduct (22 NYCRR 1200.0) rule 8.4(h). On or about January 20, 2009, the respondent caused an online transfer from his attorney escrow master account to his operating account, in the amount of $10, 000. At or about that time, the respondent also caused an online transfer from his attorney escrow master account to the personal account that he holds jointly with his wife, in the amount $2, 000. On or about February 2, 2009, the respondent caused an online transfer from his attorney escrow master account to the personal account that he holds jointly with his wife, in the amount of $1, 000. On or about February 9, 2009, the respondent caused an online transfer from his attorney escrow master account to the personal account he holds jointly with his wife, in the amount of $1, 000. On or about February 13, 2009, the respondent caused an online transfer from his attorney escrow master account to the personal account he holds jointly with his wife, in the amount of $7, 000. The respondent did not have authorization to make the foregoing online transfers from his attorney escrow master account.

With respect to charge three, we find that the respondent made disbursements to himself from the funds he was holding on behalf of the Koppelmans, as and for the payment of legal fees. However, these disbursements were made before the Koppelman real property transactions were concluded. While the respondent believed he had implicit authorization to make these disbursements, we find no evidence that the disbursements were explicitly authorized. The foregoing reflects adversely on the respondent's fitness as a lawyer. Accordingly, we find that the Special Referee properly sustained charge three.

Charge four alleges that the respondent neglected a legal matter entrusted to him, in violation of Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.3(b). By letter dated January 10, 2010, the Grievance Committee advised the respondent that a sua sponte complaint had been authorized against him as a result of escrow check no. 1535 having been dishonored on or about December 9, 2009, due to insufficient funds (see charge two). The respondent failed to re-issue a check to the NYC Department of Finance, in payment of ...


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