In the Matter of Steven S. Herzberg, an attorney and counselor-at-law: Attorney Grievance Committee for the First Judicial Department, Petitioner, Steven S. Herzberg, Respondent.
proceedings instituted by the Attorney Grievance Committee
for the First Judicial Department. Respondent, Steven S.
Herzberg, was admitted to the Bar of the State of New York at
a Term of the Appellate Division of the Supreme Court for the
Second Judicial Department on July 23, 2003.
Dopico, Chief Attorney, Attorney Grievance Committee, New
York (Kathy W. Parrino, of counsel), for petitioner.
Respondent pro se.
Friedman, Justice Presiding, Angela M. Mazzarelli, Karla
Moskowitz, Judith J. Gische, Ellen Gesmer, Justices.
Steven S. Herzberg was admitted to the practice of law in the
State of New York by the Second Judicial Department on July
23, 2003. At all times relevant to this proceeding,
respondent maintained an office for the practice of law
within the First Judicial Department.
Attorney Grievance Committee (Committee) seeks an order,
pursuant to the Rules for Attorney Disciplinary Matters (22
NYCRR) § 1240.9(a)(3), immediately suspending respondent
from the practice of law until further order of this Court,
based upon his failure to cooperate with the Committee's
investigation of eight dishonored checks drawn against his
firm's IOLA account, which constitutes professional
misconduct immediately threatening the public interest.
Committee commenced an investigation in late 2016, after
receiving three notices from the Lawyer's Fund for Client
Protection informing the Committee that eight checks drawn
against respondent's firm's IOLA account, totaling
$56, 807.57, had been dishonored. The Committee forwarded the
three notices to respondent's firm, and requested an
answer and the relevant IOLA account records. Respondent
failed to respond to the three notices.
January 11, 2017, and again on February 23, 2017, the
Committee mailed respondent two letters via priority mail,
requesting that he submit an answer explaining the dishonored
checks and produce the relevant IOLA account records within
10 days. The letters further warned respondent that failure
to respond could result in his interim suspension. Although
USPS tracking shows that the Committee's letters were
delivered to respondent's firm's reception desk,
respondent failed to respond to either letter.
the Committee served respondent with a subpoena directing him
to appear for an examination under oath on March 29, 2017,
and to produce the relevant bank account records. On March
21, 2017, respondent communicated with the Committee and
requested an adjournment. The Committee informed respondent
that an adjournment request would have to be submitted in
writing, and that the requested documents were due on March
29, 2017. Respondent failed to submit a written request for
an adjournment and did not appear on March 29, 2017.
Respondent produced certain IOLA account records, but failed
to produce the relevant records.
March 29, 2017, the Committee sent respondent an email
requesting that he produce the relevant IOLA account records.
Although respondent is a signatory to the account in
question, and issued checks from it, respondent replied by
email that he lacked the key code to obtain access to the
relevant bank records, but would attempt to obtain the key
code from his partner. To date, respondent has failed to
produce all of the requested records or to submit an answer
explaining the dishonored checks.
April 28, 2017, the Committee served respondent with a motion
seeking respondent's suspension. The motion was
personally delivered to respondent's partner in his
office, and additionally sent, by first class mail, to
respondent at his law office. Respondent has failed to submit
failure to produce the requested records, submit an answer,
or appear for an Examination Under Oath constitutes
professional misconduct immediately threatening the public
interest, which warrants suspension pursuant to 22 NYCRR
1240.9(a)(3)(see Matter of Moreno 149 A.D.3d 65');">149 A.D.3d 65 [1st
Dept 2017]; Matter of King 145 A.D.3d 75');">145 A.D.3d 75 [1st Dept
the motion should be granted pursuant to 22 NYCRR
1240.9(a)(3), and respondent suspended from the practice of
law, effective immediately, and until such time as
disciplinary matters pending before the ...