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
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.
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
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.
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:
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
all relevant times, the respondent maintained an operating
account at JP Morgan Chase Bank, under account number
XXXXX6622 (hereinafter the operating account).
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,
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
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;
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
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.
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.
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.
or about March 10, 2014, upon being notified of the
dishonored check, the respondent deposited $2, 100 into the
March 12, 2014, the subject check was re-presented for
payment and honored, leaving a ...