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In re Adelsberg

Supreme Court of New York, Second Department

March 22, 2017

In the Matter of Howard M. Adelsberg, admitted as Howard Michael Adelsberg, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Howard M. Adelsberg, respondent. Attorney Registration No. 2101970

         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 First Judicial Department on December 8, 1986. By decision and order on motion of this Court dated June 2, 2016, the Court, on its own motion, authorized the Grievance Committee to institute and prosecute a disciplinary proceeding against the respondent and the issues raised were referred to the Honorable Patrick A. Sweeney, as Special Referee, to hear and report.

          Mitchell T. Borkowsky, Hauppauge, NY (Robert H. Cabble of counsel), for petitioner.

          Howard Benjamin, New York, NY, for respondent.

          RANDALL T. ENG, P.J. WILLIAM F. MASTRO MARK C. DILLON RUTH C. BALKIN L. PRISCILLA HALL, JJ.

          OPINION & ORDER

          PER CURIAM

         The Grievance Committee for the Tenth Judicial District (hereinafter the petitioner) served the respondent with a petition dated July 1, 2015, containing five charges of professional misconduct. After a preliminary conference held on February 10, 2016, and a hearing conducted on April 19, 2016, the Special Referee sustained all charges, in a report dated August 12, 2016. The petitioner now moves to confirm the Special Referee's report and to impose such discipline as this Court deems just and proper. The affirmation in response submitted by the respondent's counsel requests that a public censure be imposed in view of the evidence presented in mitigation.

         The Petition

         Charge one, as amended, alleges that the respondent, while in possession of funds belonging to other persons, incident to his practice of law, failed to make or maintain appropriate ledger books or similar required bookkeeping records for his attorney IOLA trust account, and failed to make accurate entries of all financial transactions in a ledger or similar record in the regular course of his practice, at or near the time of the act, condition, or event recorded, in violation of rule 1.15(d)(1) and (2) of the Rules of Professional Conduct (22 NYCRR 1200.0) as follows:

         1. At all relevant times, the respondent maintained an attorney trust account at JP Morgan Chase Bank, under account number XXXXX5491, and denominated "Law Office of Howard M. Adelsberg Attorney Trust Account IOLA" (hereinafter the IOLA account).

         2. At all relevant times, the respondent maintained an operating account at JP Morgan Chase Bank, under account number XXXXX6622 (hereinafter the operating account).

         3. By letter dated April 8, 2014, the petitioner provided the respondent with a copy of a dishonored check notification from the Lawyers' Fund for Client Protection, advising that IOLA check numbered 1061, for $24, 229.85 (hereinafter the subject check), drawn against the IOLA account, was dishonored when presented for payment on February 25, 2014, due to insufficient funds, the available balance being $22, 229.85.

         4. In the petitioner's April 8, 2014, letter, the respondent was asked to provide, within 20 days, an explanation of the circumstances that caused the subject check to be drawn against insufficient funds, as well as the following bank and bookkeeping records:

         a. Records of all deposits in and withdrawals from the account, which specifically identify the date, source, and description of each item deposited, as well as the date, payee, and purpose of each withdrawal or disbursement; the names of all persons for whom the funds are or were held, and the names of all persons to whom such funds were disbursed;

         b. All checkbooks and check stubs, bank statements, pre-numbered cancelled checks (front and back), and duplicate deposit slips, for the six months preceding the date that the subject check was dishonored; and

         c. The identity of the source or sources of the funds (i.e., what amount belongs to what client) that comprised the opening balance in the earliest banking statement provided.

         5. By letter dated April 8, 2014, the respondent, by counsel, explained that the subject check related to a personal injury matter, identified as the Foy matter, and was made payable to a law firm as that firm's referral/participation fee in the Foy matter.

         6. The respondent further explained in his April 8, 2014, letter that the insufficiency in the IOLA account on February 25, 2014, resulted from an error the respondent made on February 6, 2014, in an unrelated matter, the Sibaja matter, in which the respondent withdrew $4, 872.05 for his legal fee in that matter. The respondent stated that he should have withdrawn only $2, 872.05, and thus, he overdisbursed his legal fee in the Sibaja matter by $2, 000, the amount of the deficiency on February 25, 2014.

         7. On or about March 10, 2014, upon being notified of the dishonored check, the respondent deposited $2, 100 into the IOLA account.

         8. On March 12, 2014, the subject check was re-presented for payment and honored, leaving a ...


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