Opinion
2013-01451 Attorney Registration No. 3954385 M156420
05-17-2013
In the Matter of Keith D. Erlington, admitted as Keith Dalton Erlington, an attorney and counselor-at-law. Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, petitioner; v. Keith D. Erlington, respondent.
, P.J.
WILLIAM F. MASTRO
REINALDO E. RIVERA
PETER B. SKELOS
MARK C. DILLON, JJ.
DECISION & ORDER ON MOTION
Motion by the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts (1) to suspend the respondent from the practice of law pursuant to 22 NYCRR 691.1(l)(1)(ii) and (iii), pending further order of the Court, upon a finding that he is guilty of professional misconduct immediately threatening the public interest based upon his substantial admissions under oath and other uncontroverted evidence that he committed an act or acts of serious professional misconduct; and (2) to authorize the institution and prosecution of a disciplinary against the respondent based upon the allegations of professional misconduct set forth in a verified petition dated February 5, 2013. The respondent was admitted to the Bar at a term of the Supreme Court in the Appellate Division, Second Judicial Department on June 20, 2001, under the name Keith Dalton Erlington.
Upon the papers filed in support of the motion and no papers having been filed in opposition or in relation thereto, it is
ORDERED that the motion is granted; and it is further,
ORDERED that pursuant to 22 NYCRR 691.4(l)(1)(ii) and (iii), the respondent, Keith D. Erlington, admitted as Keith Dalton Erlington, is immediately suspended from the practice of law in the State of New York, pending further order of the Court; and it is further,
ORDERED that the respondent, Keith D. Erlington, admitted as Keith Dalton Erlington, shall promptly comply with this Court's rules governing the conduct of disbarred, suspended, and resigned attorneys (see 22 NYCRR 691.10); and it is further,
ORDERED that pursuant to Judiciary Law § 90, during the period of suspension and until further order of this Court, the respondent, Keith D. Erlington, admitted as Keith Dalton Erlington, is commanded to desist and refrain from (1) practicing law in any form, either as principal or agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application, or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law; and it is further,
ORDERED that the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts is hereby authorized to institute and prosecute a disciplinary proceeding in this Court, against Keith D. Erlington, admitted as Keith Dalton Erlington, based on the verified petition dated February 5, 2013; and it is further,
ORDERED that Diana Maxfield Kearse, Chief Counsel, Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, Renaissance Plaza, 335 Adams Street, Suite 2400, Brooklyn, N.Y. 11201, is hereby appointed as attorney for the petitioner in such proceeding; and it is further,
ORDERED that within 20 days after service upon him of a copy of this decision and order on motion, the respondent, Keith D. Erlington, admitted as Keith Dalton Erlington, shall serve a copy of his answer to the petition upon the Grievance Committee and the Special Referee, and file the original with the Court; and it is further,
ORDERED that the issues raised by the verified petition and any answer thereto are referred to the Honorable Arthur J. Cooperman, a retired Justice of the Supreme Court, Queens County, 125-01 Queens Boulevard, Kew Gardens, N.Y. 11415, as Special Referee to hear and report, together with his findings on the issues, and to submit a report, within 60 days after the conclusion of the hearing or the submission of post-hearing memoranda; and it is further,
ORDERED that if the respondent, Keith D. Erlington, admitted as Keith Dalton Erlington, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency and the respondent shall certify to the same in his affidavit of compliance pursuant to 22 NYCRR 691.10(f).
We find, prima facie, that the respondent is guilty of professional misconduct immediately threatening the public interest based upon his substantial admissions under oath and other uncontroverted evidence that he committed an act or acts of serious professional misconduct.
On January 4, 2012, the Grievance Committee received a complaint of professional misconduct against the respondent from Iris Jones. Mrs. Jones alleged that, as a result of her efforts to obtain the release of escrow funds from Ticor Title Insurance (hereinafter Ticor), she discovered that, without her knowledge or authorization, the respondent had obtained a check in the amount of $9,200 from Ticor, payable to Mrs. Jones, on which he forged Mrs. Jones's endorsement and deposited it into his account. On January 17, 2012, the Grievance Committee wrote to the respondent requesting a written answer to the Jones complaint, a copy of which they enclosed, within 10 days. The respondent submitted an answer dated February 15, 2012, in which he claimed that Roy Jones, the "husband and agent of Iris Jones," had retained him in February 2010 "to recover some funds being held by a title company from a refinance." The respondent wrote, "I resolved the matter and received the check in April 2010 and I delivered it to Mr. Jones personally at his office. . . Shortly thereafter, Mr. Jones asked me to stop by [and] pick up the check. " The respondent claimed that, when Mr. Jones gave him back the check, it was "already endorsed by Iris Jones" payable to [the respondent's] order." He asserted that the check was payment for a "balance" of "fees" that the Jones owed him for "some time." The respondent denied that he forged Mrs. Jones's endorsement on the check. Enclosed with the respondent's answer was an affidavit signed by "Roy Jones," dated February 21, 2012, stating, inter alia, that he has known the respondent for "many years," and that his wife, Iris Jones, "made a complaint [without knowing] all the facts. She didn't even ask me what happened because I would have [told] her. She knows full well that I am the one that deals with . . . business and . . . money."
On February 23, 2012, the Grievance Committee sent Mrs. Jones a copy of the respondent's answer for her "review and reply." Although the letter was not returned, no response was received. Between April 15, 2012, and July 12, 2012, the Grievance Committee attempted to reach Mrs. Jones by telephone, to no avail. On July 12, 2012, the Grievance Committee sent Mrs. Jones a letter, asking her to call the Grievance Committee's office. To date, Mrs. Jones has neither responded to the Grievance Committee's calls and letters, nor inquired about the status of her complaint.
By letter dated May 7, 2012, the respondent was directed to appear at the Grievance Committee's office for an examination under oath (hereinafter EUO). He was instructed to bring, inter alia, his escrow records from the date he deposited Mrs. Jones's Ticor check until he disbursed the funds, along with his file in the matter, and any evidence to support his answer to the complaint. The respondent appeared on May 31, 2012.
The respondent testified that, on or about February 27, 2010, Mr. Jones, a neighbor whom the respondent has known for "about 30 years," retained him to seek the release of $9,200 that Ticor had taken in escrow for unsatisfied judgments when Mr. Jones's wife, Iris, refinanced property she owned. He testified, further, that Mr. Jones executed a retainer agreement, as "agent" for his wife, which provided that the respondent's fee would be thirty percent of the amount recovered. The respondent admitted that he neither saw, nor received, a power of attorney from Mrs. Jones, and that he never discussed the matter with her. The respondent claimed, as he did in his written answer, that upon receiving the check from Ticor, he personally brought it to Mr. Jones. When he gave Mr. Jones the check, he also gave him a bill for legal services in the amount of $11,250, itemizing past work he had done for the Jones, for which he had not been paid. The respondent claimed among other things, that he had drafted a "family limited partnership" in or about October 2009. Although he had been directed to bring copies of any/all bills for legal services rendered to/for the Jones, the respondent acknowledged that he failed to do so. He promised to "fax" a copy of his bill for the "family limited partnership" by 5:00 p.m. However, the respondent neither faxed, nor otherwise provided, a copy of the bill as promised.
According to the respondent, Mr. Jones asked him to come back and pick up the check, which had already been endorsed, "Iris Jones, pay to the order of [the respondent], as attorney, [for] deposit only." The respondent believed that the endorsement, "as attorney," required him to deposit the check in his escrow account. However, it did "not necessarily" mean that he received the funds as a fiduciary.
The respondent deposited the $9,200 Ticor check into his escrow account on April 16, 2010. He thereafter kept the entire amount, and did not give any part of the money to Mr. or Mrs. Jones. According to the respondent, he never attempted to speak to Mrs. Jones about the matter, even after she lodged a complaint against him.
In conjunction with his EUO, the respondent provided copies of the April 2010 statement for his escrow account, as well as a copy of the $9,200 Ticor check. He testified that when he deposited the check in his escrow account, on April 16, 2010, he had approximately $8,000 on deposit in the account, which belonged to another client, Rhonda Hewitt.
The respondent acknowledged that his April 2010 escrow statement showed that from April 7, 2010, through April 28, 2010, he made numerous cash withdrawals from his escrow account, in amounts ranging from $40 to $10,000, for a total of $13,625.05. He claimed that the cash withdrawals represented "fees [he] was withdrawing as [he] was doing work" for Ms. Hewitt. He stated, "as I [did] whatever she wanted me to do, then I would withdraw." Asked what kind of work he was doing that resulted in fees of $40, $50 or $100, the respondent said, "if I had to travel, if I had to . . . take a taxi or something like that, then I would take that and do that, or make copies, or what have you" and the Ms. Hewitt "put it in there, we put it in there and that was to draw against as we went along." According to the respondent, he had a written retainer agreement with Ms. Hewitt regarding his use of her funds. Although he promised to fax the retainer to the Grievance Committee, he never did.
Following the respondent's EUO on May 31, 2012, the Grievance Committee obtained, pursuant to subpoena, records for the respondent's escrow account for the period September 1, 2009, through December 2010 when the account was closed. The December 2009 statement reflects that the respondent's opening balance on December 1, 2009, was $116.88. That same day, the respondent deposited two checks from Ms. Hewitt, payable to the respondent, as attorney, for $14,500 and $850, respectively, bringing the balance in account to $15,266.88. The memo on each of Ms. Hewitt's checks reads, "580 MacDonough Street Deposit."
On July 18, 2012, the Grievance Committee contacted Ms. Hewitt, who stated that she retained the respondent to represent her in connection with the purchase of a house at 580 MacDonough Street, Brooklyn. She stated that the respondent told her that she should give him the down payment, to hold in escrow. A first-time home buyer, Ms. Hewitt thought nothing of the respondent's request. Ms. Hewitt never signed any agreement with the respondent regarding those funds. A few weeks later, when the deal fell through, Ms. Hewitt tried to recover her money, but could not reach the respondent. Ms. Hewitt told the Grievance Committee that she found out where the respondent lived, went to his house, and demanded her money, but that he would not give it to her. Ms. Hewitt said that she continued to "badger" the respondent until April 2010, when he finally gave her a lump sum payment of $10,000, followed by smaller amounts, all in cash.
The respondent's escrow records reveal that, on December 8, 2009, the day after depositing Ms. Hewitt's funds, he obtained a $10,000 cashier's check payable to "Enealia Nau as attorney." That same day, the respondent also withdrew $5,000 in cash. On December 23, 2009, the respondent deposited the foregoing cashier's check into his escrow account, with the endorsement "not [used] for purpose intended." Between December 23, 2009, and April 9, 2010, the respondent made 12 cash withdrawals from his escrow account, totaling $3,500. However, in that same period, the respondent only made two deposits, totaling $660.89.
By April 9, 2010, the balance in the respondent's escrow account was only $7,427.77, less than half the sum Ms. Hewitt had entrusted to him. On April 16, 2010, the respondent deposited Mrs. Jones's $9,200 check from Ticor, bringing the balance in his escrow account to $16,627.77. On April 19, 2010, the respondent withdrew $10,000 in cash; the withdrawal slip says "Rhonda Hewitt." Between April 19, 2010, and December 10, 2010, the respondent depleted the remaining funds in his escrow account through approximately 30 cash withdrawals.
On August 30, 2012, the respondent appeared at the Grievance Committee's office for a second EUO. The respondent stated that he had not brought the agreement he purportedly had with Ms. Hewitt with him. He agreed to fax the agreement to the Grievance Committee by 5:00 P.M. on September 4, 2012, or advise that he was unable to find it. However, the respondent neither provided the purported agreement nor advised that he could not locate it.
The respondent conceded that he had withdrawn $10,000 of Ms. Hewitt's funds for a down payment on a contract of sale that "fell through," and that he re-deposited the funds in his escrow account. Although the respondent previously testified that Ms. Hewitt authorized him to use her funds, he now testified that he returned most of the funds to her because she "found another property that she wanted to buy." The respondent would not - or could not - explain why he had to use Mrs. Jones's funds to pay back Ms. Hewitt.
The respondent's escrow records reveal that on November 9, 2009, before receiving Ms. Hewitt's funds, he deposited another check, in the amount of $1,000, into his escrow account from Hung Pin Hung, payable to him "as attorney." The memo on the check reads, "226 Lexington Avenue, Brooklyn." Prior to depositing Hung Pin Hung's check, the balance on deposit in the respondent's escrow account was $116.88. On November 18, 2009, and November 19, 2009, mere days after depositing the check from Hung Pin Hung, the respondent made two cash withdrawals from his escrow account totaling $1,000.
On July 18, 2012, the Grievance Committee contacted Kenny D. Lin, who, according to ACRIS (Automated City Register Information System), represented Hung Pin Hung in connection with the purchase of 226 Lexington Avenue, Brooklyn, in January 2010. Mr. Lin advised that the above-referenced check represented the down payment from Hung Pin Hung on the contract of sale. According to that contract, the down payment was to be maintained in escrow, by the respondent, until the closing or termination of the contract. Mr. Lin provided the Grievance Committee with a copy of the contract.
At the respondent's second EUO, he admitted that he did not maintain the down payment from Hung Pin Hung in his escrow account, as the contract required. He claimed that he "most likely" gave the money to his client, Curby Darnley. The respondent conceded that he had no discussion with Hung Pin Hung's attorney, Kenny Lin, prior to releasing the escrow. Although the respondent claimed that he "maybe," "probably," "most likely" had an amendment to the contract, or a written agreement regarding his release of the $1,000 from escrow, and promised to provide it to the Grievance Committee, he never did.
The respondent also failed to produce a ledger or similar record of deposits into and withdrawals from his escrow account, as directed. Initially, the respondent testified that he kept no ledger, and that he maintained records of escrow funds on the backs of client "envelopes" or "folders." He thereafter claimed that he did, in fact, maintain a ledger. However, the respondent failed to produce his purported ledger. At his second EUO, the respondent conceded that, in fact, he "really [doesn't] have a ledger."
The respondent has neither opposed the Grievance Committee's motion nor filed any response relative thereto.
Based upon the foregoing, the motion is granted, the respondent is immediately suspended from the practice of law, pursuant to 22 NYCRR 691.4(l)(1)(ii) and (iii), pending further order of this Court, the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against him, and the matter is referred to a Special Referee to hear and report.
ENG, PJ, MASTRO, RIVERA, SKELOS, DILLON, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court