In the Matter of Steven S. Herzberg, a suspended attorney: Attorney Grievance Committee for the First Judicial Department, Petitioner, Steven S. Herzberg, (OCA Atty. Reg. No. 4138558) 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 Parinno, of counsel), for petitioner.
LLP (Jeffrey Briem, of counsel).
Friedman, Justice Presiding, Judith J. Gische Angela M.
Mazzarelli Ellen Gesmer Anil C. Singh, 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.
order of July 18, 2017, this Court immediately suspended
respondent from the practice of law, pursuant to Rules for
Attorney Discipline Matters (22 NYCRR) § 1240.9 (a)(3),
based on his failure to cooperate with the Attorney Grievance
Committee's (the Committee) investigation of eight
dishonored checks drawn against his law firm's IOLA
account (153 A.D.3d 33');">153 A.D.3d 33 [1st Dept 2017]). On July 21, 2017,
the Committee served respondent's counsel with the
suspension order with notice of entry and directed respondent
to comply with Judiciary Law §§ 478, 479, 484, and
486, and 22 NYCRR 1240.15. Respondent filed an affidavit of
compliance, sworn to August 23, 2017, stating that he had
complied with the order of interim suspension in all
Committee now seeks an order, pursuant to Judiciary Law
§§ 90(2) and 486, immediately disbarring respondent
without further proceedings, for willfully engaging in the
unauthorized practice of law and for continuing to hold
himself out as a licensed New York attorney while this
Court's suspension order was in effect, in violation of
22 NYCRR 1240.15 and Judiciary Law § 478. In addition,
the Committee charges that respondent, in violation of this
Court's suspension order, has failed to comply with the
notification requirements of 22 NYCRR 1240.15(b) and has
continued to use his escrow accounts.
the Committee presents evidence that respondent has engaged
in the unauthorized practice of law with respect to roughly
10 separate matters and, in the course of doing so, has
violated the terms of his suspension by continuing to hold
himself out as a licensed New York attorney. For example, by
email dated July 24, 2017 (after respondent's
suspension), his associate, Emily Tran, Esq., retained the
services of per diem attorneys for a court appearance on
behalf of a plaintiff in a real estate action and directed
them to contact respondent if they had any questions
. Following the court appearance, on
July 25, one of the retained attorneys emailed both
respondent and Tran a copy of the discovery order issued by
the court at the conference. The retained attorneys advised
the Committee that respondent had not informed them of his
suspension prior to the July 25, 2017 conference. In
addition, the Committee notes that respondent waited until
August 24, 2017 to inform the court, and until August 25,
2017 to inform opposing counsel, of his inability to continue
as counsel for the plaintiff in this matter due to his
another instance, the Committee presents evidence that
respondent continued to represent a real estate lender after
his suspension. The Committee cites to over 25 emails from
July 20 (when respondent first learned of his suspension) to
August 10, 2017, among respondent, Tran, the borrower's
attorney, and the new lender's attorney, in which
respondent continued to attempt to finalize a settlement.
Respondent admits to emailing the parties despite being aware
of his suspension, but maintains that he only did so to
ensure the parties received certain documents. The
borrower's attorney and the new lender's attorney
both stated that respondent had not informed them of his
suspension at the time of these emails.
third instance, respondent, while representing the defendant
in a real estate action, finalized a settlement, as evidenced
by roughly 20 emails dated between July 26 and August 23
among respondent, Tran and the plaintiff's counsel. In
response to the Committee's charge that he informed
neither the plaintiff's counsel nor the court of his
suspension, respondent stated he believed that it was
unnecessary to do so because none of the agreed upon
settlement terms were changed after his suspension and he did
no work on this case which could only be done by a licensed
addition to the foregoing charged violations of the order of
suspension, the Committee alleges that, between July 24 and
August 8, 2017, respondent took on, or worked on, six
additional real estate matters and, in these cases, continued
to hold himself out as a licensed New York attorney and
failed to notify the required parties of his suspension.
in addition to the real estate transactions described above,
in January 2018, the Committee received a complaint alleging
that respondent and his former partner failed to return the
purchaser's $20, 000 contract deposit in an aborted real
estate transaction, for which a judgment had been entered
against them, which judgment, to date, remains unsatisfied.
Despite respondent's repeated assertions that he
reimbursed all his clients with his own funds, he has failed
to answer this complaint or address this in his response to
the Committee's motion.
addition to the Committee's charges that respondent
engaged in the unauthorized practice of law, the Committee
submitted uncontroverted evidence that respondent continued
to use two of his escrow accounts in violation of the order
of suspension. Respondent swore in his affidavit of
compliance that "[f]or all cases for which I may have a
claim for compensation earned for work performed, I will make
a motion in the appropriate forum for an order fixing my
fees." However, his bank statements, which show
post-suspension activity in the two accounts, establishes
that this assertion is false. It is particularly noteworthy
that respondent has no response to the Committee's
argument that his seven post-suspension deposits, totaling
$2, 187, 451.49, to his Citibank escrow account, and nine
escrow checks drawn on that account after his suspension,
constitute evidence that he continued to take on new clients
after the date of his suspension. In addition, a check in the
amount of $3, 000 was issued by respondent to his law firm
from his IOLA account at TD Bank on August 2, 2017, and was
deposited to his business/operating account on August 7,
2017. Respondent claims that this check was ...