Hello everyone and welcome to this Ethics Alert which will discuss the recent 3 year suspension of a New York lawyer who made 30 cash ATM withdrawals between July 2014 and June 2016 from his trust account totaling $18,700.00 (and more than $45,000.00 by check) from a $192,548.41 trust deposit. The case is Matter of Pollack, Docket No: 2018-06614 (Feb. 13, 2020 Slip Op 01064. The appellate court opinion is here: http://www.courts.state.ny.us/reporter/3dseries/2020/2020_01064.htm
According to the opinion, the lawyer made 30 cash withdrawals totaling $18,700.00 from his trust account with an ATM card beginning in April 2014. He also withdrew more than $45,000.00 from the account by check. The lawyer deposited more than $80,000.00 into the account in September 2016, to replenish the misappropriated amounts.
The lawyer also deposited his earned own legal fees into the trust account, which was an improper commingling of funds. The lawyer told investigators that he was unaware that his bank had linked his trust account to his debit card and that his mistakes were unintentional. The lawyer also said he had diabetes and depression and those conditions contributed to his inability to recognize his mistakes, although he did not know about the conditions at the time.
The opinion concluded that the lawyer’s actions were likely caused by “willful ignorance” rather than the health conditions he claimed as a mitigating factor and, notwithstanding those factors and the lawyer’s expressions of remorse, the 3 year suspension was appropriate.
The opinion states that (the lawyer’s) “diabetic condition cannot reasonably account for the lack of attention and oversight over his bank accounts over an extended two-year period.” “Assuming that the respondent truly did not know that he was invading funds that he knew were ‘not to be touched,’ willful ignorance, rather than uncontrolled diabetes, is the more plausible explanation for the respondent’s use of escrow funds for personal expenses.”
The opinion noted that the lawyer had been admonished in 2018 for fabricating a judicial decree and received two letters of advisement in 2017 for failing to keep clients reasonably informed about the status of legal matters.
Bottom line: This lawyer misappropriated over almost $64,000.00 from trust funds apparently for his own use and had prior discipline; however, somewhat surprisingly, was not disbarred, which would probably have been the sanction in most other states and jurisdictions, including Florida, regardless of the mitigation.
Be careful out there.
As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding ethics, risk management, or other issues, please do not hesitate to contact me.
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Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
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Palm Harbor, Florida 34683
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