Opinion
M-2-238.
March 24, 2011
OPINION AND ORDER
This matter comes before the Committee on Grievances for the United States District Court for the Southern District of New York (the "Committee") to consider the imposition of discipline against Respondent Roy R. Kulcsar (the "Respondent"), an attorney admitted to the bar of this Court. For the reasons discussed below, the Committee concludes that Respondent engaged in the following conduct violative of the New York Rules of Professional Conduct and its predecessor, the Lawyer's Code of Professional Responsibility (collectively, the "Rules"):
The members of the Committee are District Judge Jed S. Rakoff, Chair; Chief Judge Loretta A. Preska; District Judges P. Kevin Castel, Paul G. Gardephe, John F. Keenan, Colleen McMahon, Louis L. Stanton, and Richard J. Sullivan; and Magistrate Judge Frank Maas.
On April 1, 2009, New York Courts replaced the Lawyer's Code of Professional Responsibility with the New York Rules of Professional Conduct. The Committee reaches its decision applying the rules in effect as of the dates of Respondent's conduct, but notes that the disciplinary rules cited herein are fully consistent with the newly-adopted rules in all respects here relevant.
(1) Commingling of attorney funds with funds belonging to others and possessed incident to the attorney's law practice (Rule 1.15(a), (b); DR 9-102(A), (B));
(2) Failure to maintain complete records of funds belonging to others that come into the lawyer's possession (Rule 1.15(c)(3); DR 9-102(C)(3));
(3) Failure to maintain records required by the Rules to be maintained for a period of seven years after the events they record (Rule 1.15(d); DR 9-102(D));
(4) Failure to cooperate with the Committee's investigation of his conduct (Rule 8.4, DR 1-102); and
(5) Failure to produce required records in response to a notice or subpoena for documents in connection with a Grievance Committee investigation (Rule 1.15(i), (j); DR 9-102(I), (J)).
Because of this misconduct, and after taking account of all of Respondent's submissions, the Court, by its Committee, hereby suspends Respondent from practicing law before the bar of this Court for a period of two years.
BACKGROUND
This matter began with the appointment, by order dated August 14, 2008, of Frank Wohl, Esq., a member of the panel of attorneys appointed to advise and assist the Committee, directing him to investigate allegations, referred to the Committee by the Honorable Denise Cote, that Respondent had used improper means to solicit inmates as clients at the Metropolitan Correctional Center ("MCC") in Manhattan, New York, and Metropolitan Detention Center ("MDC") in Brooklyn, New York. Initially, the concern was that Respondent appeared to be obtaining clients by making unfounded promises of results he claimed he could achieve and by interfering with attorney-client relationships of other defense counsel. Early in the investigation allegations surfaced that Respondent might be compensating inmates for the referral of clients by depositing money into their institutional commissary accounts. Records produced by the Bureau of Prisons (BOP) and Western Union confirmed that Respondent was making substantial deposits to commissary accounts of inmates at the MCC and MDC. Between August 2004 and February 2010, Respondent made 139 deposits to 36 inmates totaling $17,905 and ranging in amount between $10 and $800, with some inmates receiving thousands of dollars in deposits over months or years.
Mr. Wohl was assisted throughout the investigation by his associate Kathryn Malizia, Esq.
Inmate commissary accounts are akin to bank accounts, allowing inmates to maintain funds and purchase items in the facility's commissary while they are incarcerated. Family, friends, and other sources may deposit funds into these accounts.
Respondent, however, has no bookkeeping records relating to his law practice or, specifically, relating to these commissary deposits. When questioned about his records of commissary account deposits and his general bookkeeping practices, Respondent testified that he did not keep regular records of deposits into inmates commissary accounts and that he maintained only a single checking account for his personal affairs, his law practice, and the maintenance of funds entrusted to him as an attorney. Expenses and income related to his law practice were recorded in his checkbook register and in checking account records Respondent maintained at his home. Respondent testified that he had records for his checking account dating back to 2000.
Respondent has been deposed twice during the investigation. His first deposition took place over two days, July 9 and July 22, 2009. His second deposition took place on December 21, 2010.
The First Order To Show Cause
Respondent's testimony prompted the Committee to issue the first in a series of Orders To Show Cause. The first Order, dated December 16, 2009, directed Respondent to account for conduct in apparent violation of Rules requiring attorneys to segregate their own funds from those belonging to others and to maintain detailed records of transactions in funds belonging to others. See Rule 1.15(a), (b), (c)(3) (former DR 9-102(A), (B), (C)(3)). After securing multiple extensions, Respondent filed a response, dated April 12, 2010, that not only failed to demonstrate his compliance with the Rules, but also raised additional issues about his handling of client and third-party funds and his general recordkeeping practices.
The response described two scenarios in which Respondent received funds belonging to others for deposit into inmate commissary accounts. In the first scenario, a family member or associate of an incarcerated client gave cash to Respondent to deposit into the client's account. If Respondent retained the cash for more than a day, he placed it in a safe in his home inside a labeled envelope bearing the client's name. After depositing the funds via a Western Union money transfer and confirming their receipt with the inmate, Respondent kept no records of these transactions. In the second scenario, Respondent received funds from family members via wire transfer directly into his single checking account. According to Respondent, these transfers included both outstanding legal fees and additional money to deposit into specific clients' commissary accounts. Apart from what appeared in his bank statements, however, Respondent did not maintain any records of these wire transfers or of deposits drawn from those funds.
The Second Order To Show Cause and Interim Suspension
On May 19, 2010, investigating counsel issued a document request for Respondent's bookkeeping records along with a subpoena for his testimony in connection with those records. Despite accommodation of two requests for adjournment, Respondent ultimately failed to produce documents or to appear for his deposition. As a result of Respondent's failure to comply with discovery requests, the Grievance Committee issued a second Order To Show Cause, dated August 12, 2010, this time directing Respondent to account for his failure to cooperate with this investigation, as required under the Rules. See Rules 1.15(i), (j), 8.4; (former DR 1-102, 9-102(I), (J)). Respondent's answer, dated September 13, 2010, set forth by way of mitigation certain circumstances in his personal and professional life, but did not provide the documents sought in the document request; nor did it explain why he had failed to produce documents or appear for his deposition.
On September 24, 2010, the Committee issued an order suspending Respondent on an interim basis from practicing law in the Southern District of New York (the "Order of Suspension"). Only after the Order of Suspension was issued did Respondent produce documents and appear for his deposition. Respondent's Document Productions and Deposition of December 21, 2010
The document request issued by the investigating attorney, dated May 19, 2010, sought records required to be maintained for a period of seven years pursuant to Rule 1.15(d), former DR 9-102(D). These included records of funds entrusted to Respondent by clients and third parties; copies of any retainer and compensation agreements with clients; and records of financial transactions related to Respondent's law practice, including, inter alia, bank records, deposit and withdrawal slips, commissary deposit records, receipts of payment, and bills rendered to clients.
Respondent ultimately made three productions in response to the document request. Taken together these productions consisted of the following records:
1. Seven signed retainer agreements ranging in date from December 11, 2008, through October 18, 2010;
2. A receipt of payment addressed to a client, dated March 29, 2010;
3. Bank statements for Respondent's checking account for the period December 7, 2006 through September 30, 2010. These statement included images of canceled checks for this entire period, but deposit and withdrawal slips only for the period April 1, 2009, through December 31, 2009.
Correspondence accompanying the productions explained that the bank statements had all been obtained from third parties and that Respondent had obtained the retainer agreements and receipt of payment from his files and from clients who were able to provide him with copies.
Although Respondent's document production remained incomplete, the investigating attorney in this matter agreed to depose Respondent, at his request, on December 21, 2010. In his testimony, Respondent confirmed what his document productions had suggested — that he did not maintain any bookkeeping records for his law practice during the period covered by the document request. Despite his testimony in July 2009 that he maintained banks statements for this period and made notations in his checkbook, Respondent testified in his second deposition that the bank statements were no longer in his possession. When questioned about his failure to produce his checkbook, Respondent said that he had not yet looked for checkbooks or check stubs sought by the document request.
Respondent testified that he was aware of the Rules governing the maintenance of records involving transactions in funds or property belonging to others, but said he did not believe these provisions applied to transactions in funds surrounding commissary deposits. He viewed his handling of funds on behalf of clients and others as a "convenience," and stated that, because his possession of these funds was "transitory," he did not believe he had an obligation to maintain records after confirming that the designated inmate had received the funds. Respondent added that he had since come to recognize that he had an ethical obligation to create and maintain records of transactions involving such funds and to notify the funds' owner upon receiving the funds and upon disbursing them to the designated recipient.
The Third Order To Show Cause
On January 31, 2011, the Committee issued a third Order To Show Cause based on Respondent's document productions and testimony. The third Order directed Respondent to show cause why he should not be disciplined for apparent violations of Rule 1.15(d) of the Rules of Professional Conduct (former DR 9-102(D)), which require attorneys to maintain certain records related to their law practice for a period of seven years after the events they record. Respondent's counsel filed a prompt response on the Order's return date of February 22, 2011.
Respondent had previously represented himself pro se.
Respondent's answer to the Third Order To Show Cause consisted of a cover letter from his counsel, Respondent's own lengthy affidavit, various letters submitted on his behalf attesting to his generally good character, and invoices from Abbey Floor Window Fashioning, dated June 2007, June 2009, and October 2009. Although the response did not include new information on Respondent's past recordkeeping practices, the cover letter highlighted his recent efforts to cooperate with the investigation and to bring himself into compliance with the Rules. It noted that Respondent "clearly admitted his wrongdoing" in his enclosed affidavit, and that he had "started to implement proper practices and procedures in accordance with Rule 1.15(d) of [the] New York Rules of Professional Conduct." Specifically, Respondent had opened separate accounts for his business and personal use, including an IOLA account (more below), and had consulted an accountant to advise him on proper bookkeeping practices. Respondent had also familiarized himself with the provisions governing retainer agreements and generated his own retainer agreement form for use with future clients.
The invoices, offered as evidence of flood damage to Respondent's files, show services rendered for damage to Respondent's basement in 2007 and in 2009, shortly after the conclusion of his first deposition in this matter.
The letter and affidavit also explained in detail certain personal obstacles contributing to Respondent's failure to comply with the Rules, ranging from marital problems to health issues. Also included were several letters of support from members of the legal community and from members of Respondent's family and local community. All of this was fully considered by the Committee in reaching its conclusion herein.
DISCUSSION
Rule 1.5(b)(5) of the Local Rules of the United States District Court of the Southern District of New York authorizes the Committee to discipline an attorney if, after notice and opportunity to respond, it is found by clear and convincing evidence that, "[i]n connection with activities in this court," an attorney "engaged in conduct violative of the New York State Rules of Professional Conduct as adopted from time to time by the Appellate Divisions of the State of New York, and as interpreted and applied by the United States Supreme Court, the United States Court of Appeals for the Second Circuit, and this court." S.D.N.Y. Local Rule 1.15(b)(5). Such discipline "may consist of a letter of reprimand or admonition, censure, suspension, or an order striking the name of the attorney from the roll of attorneys admitted to the bar of this court." Id. 1.15(c)(1).
Commingling and Failure to Create and Maintain Required Records
Ethical Standards
Rule 1.15(a), former DR 9-102(A), sets forth the fiduciary duty owed by an attorney to clients and third parties whose funds he possesses incident to his law practice. Pursuant to this duty, the lawyer must not commingle his funds or property with funds or property belonging to others. Rule 1.15(a); DR 9-102(A). To ensure the total separation of attorney funds from those belonging to others, the Rules require that the lawyer segregate funds received from clients or third parties in a "special account." Rule 1.15(b)(1), (4); DR 9-102(B)(1), (4); see also State Finance Law § 97-v(4)(a); Judiciary Law § 497(2); 21 N.Y.C.R.R. § 7000.010. The requirements governing special accounts are detailed and precise. The special account must be in the lawyer's name or in the name of his law firm and separate from the lawyer's business or personal accounts; its checks and deposit slips must bear the title of "attorney special account," "attorney trust account" or "attorney escrow account." Rule 1.15(b)(2); DR 9-102(B)(2). All withdrawals must be made only to a named payee and not to cash, and only a lawyer admitted to practice in New York may be an authorized signatory on the account. Rule 1.15(e); DR 9-102(E). The account must be located at a banking institution in the State of New York unless the attorney obtains prior written approval by the owner of the funds to deposit the funds in an account located outside the state. Rule 1.15(b)(1); DR 9-102(B)(1). Further, the institution must agree to provide dishonored check reports pursuant to Part 1300 of the Joint Rules of the Appellate Divisions. See 21 N.Y.C.R.R. § 1300.00.
Although the Rules do not specifically mention accounts created pursuant to the "Interest On Lawyer Accounts" (IOLA) law, IOLA accounts are considered "trust accounts" under Rule 1.15 and Disciplinary Rule 9-102, and are subject to their restrictions. See Roy Simon, SIMON'S NEW YORK CODE OF PROFESSIONAL RESPONSIBILITY ANNOTATED, at 1705 (2008 ed.). Attorneys must establish an IOLA account for the maintenance of funds belonging to others that, in the lawyer's estimation, are "too small or held for too short a time to generate sufficient interest income to justify creating a segregated account." Judiciary Law § 497(2); 21 N.Y.C.R.R. § 7000.010.
Related to the duty to segregate client and third-party funds is the duty to maintain complete and accurate records of those funds. Rule 1.15(c)(3), former DR 9-102(C)(3), requires lawyers to "maintain complete records of all funds, securities, and other properties of a client or third person coming into the possession of the lawyer. . . ." Rule 1.15(c)(3); DR 9-102(C)(3). Any party with an interest in the funds must be promptly notified of their receipt, and such funds must likewise be promptly paid to the designated party. Rule 1.15(c)(1), (4); DR 9-102(C)(1), (4).
Pursuant to Rule 1.15(d), former DR 9-102(D), Lawyers must also maintain the following records for a period of seven years after the events they record:
1. Records of all deposits in and withdrawals from any special accounts and of any other bank account that concerns or affects the lawyer's practice of law. These records must specifically identify the date, source and description of each item deposited, as well as the date, payee and purpose of each withdrawal or disbursement;
2. A record for special accounts, showing the source of all funds deposited in such accounts, the names of all persons for whom the funds are or were held, the amount of such funds, the description and amounts, and the names of all persons to whom such funds were disbursed;
3. Copies of all retainer and compensation agreements with clients;
4. Copies of all statements to clients or other persons showing the disbursement of funds to them or on their behalf;
5. Copies of all bills rendered to clients;
6. Copies of all retainer and closing statements filed with the Office of Court Administration; and
7. All checkbooks and check stubs, bank statements, prenumbered canceled checks and duplicate deposit slips.
Since 2002, the New York Rules of Court have required attorneys to provide clients with written letters of engagement at the start of the representation. 22 N.Y.C.R.R. § 1215. As the leading commentator on the New York State ethical rules has noted, the rule was adopted as a court rule rather than a disciplinary rule, and thus far, the courts have not used it as a basis for imposing discipline. Roy Simon, SIMON'S NEW YORK CODE OF PROFESSIONAL RESPONSIBILITY ANNOTATED, at 1680-81 (2008 ed.). At the time of its adoption, then-Chief Administrative Judge Jonathan Lippman said of the rule, "[T]his is not about attorney discipline in any way, shape or form, and we certainly do not expect in any significant degree there to be a large number of disciplinary matters coming out of this rule." John Caher, Rule Requires Clients Receive Written Letters of Engagement, 227 N.Y.L.J. 1 (2002).
Rule 1.15(d) and DR 9-102(D) apply "not only to documents relating to a lawyer's trust accounts or other fiduciary accounts, but also to a law firm's operating accounts and `any other bank account which records the operations of the lawyer's practice of law.'" Roy Simon, supra, at 1705.
In addition to maintaining the above records, lawyers must make "accurate entries of all financial transactions in their records of receipts and disbursements, in their special accounts, in their ledger books or similar records, and in any other books of account kept by them in the regular course of their practice." Rule 1.15(d)(2); DR 9-102(D)(9). Lawyers who fail to maintain and keep the records required under Rule 1.15(d), former DR 9-102(D) "shall be deemed in violation of these Rules and shall be subject to disciplinary proceedings." Rule 1.15(J); DR 9-102(j).
Application to Respondent's Conduct
Respondent states that he routinely received funds from clients or from the relatives of clients for deposit into inmate commissary accounts, but he failed to properly handle or maintain any records of these funds in violation of Rule 1.15(c)(3) and DR 9-102(C)(3). In addition, he failed to deposit these funds into a special account, as required by Rule 1.15(b)(1), (4), former DR 9-102(B)(1), (4). Further, Respondent has testified to maintaining for some indeterminate period funds wired to his account on behalf of a client who instructed him to make incremental deposits from these funds into her commissary account. The commingling of the client's funds with those of his personal account violated the Rules' proscription against commingling. See Rule 1.15(a), (b); DR 9-102(A), (B). In at least one instance, Respondent testified that he withdrew funds from a client's bank account pursuant to a grant of power of attorney, but failed to keep any record of his handling of these funds as required by Rule 1.15(c)(3) and DR 9-102(C)(3). Although he stated he was authorized to withdraw funds to deposit into the client's commissary account and to make "rent" payments on her behalf, he created no records of these transactions, did not retain a copy of the power of attorney, and could not recall the amount he was authorized to withdraw or how much he was to deposit into her account. See Rule 1.15(c)(3) and DR 9-102(C)(3); In re Tepper, 286 A.D.2d 79, 81, 730 N.Y.S.2d 498, 500 (1st Dep't 2001) (suspending respondent for ""flagrant irresponsibility in his bookkeeping and check writing"); In re Klugerman, 189 A.D.2d 284, 596 N.Y.S.2d 397 (1st Dep't 1993) (suspending respondent who, among other misconduct, deposited checks received on behalf of a client into his regular office account, failed to notify the client of receipt of funds, and failed to promptly pay funds to the client).
There can be little doubt that Respondent's system of recordkeeping is wholly inadequate under the Rules. By his own admission, Respondent did not maintain any bookkeeping records of his law practice between June 2003 through May 2010. The only required records he has produced consist of a handful of retainer agreements, a single receipt of payment, and bank records he obtained from other sources in response to the Committee's discovery request.
Respondent's failure to segregate or maintain adequate records of transactions in funds belonging to others has obstructed the Committee's primary investigation into allegations that he made deposits into inmates' commissary accounts in exchange for referrals. Of particular relevance to this investigation is Respondent's failure to record the "date, source, and description of each item deposited" into his checking account and "the date, payee and purpose of each withdrawal or disbursement" from the account as required by Rule 1.15(d)(1)(i), former DR 9-102(D)(1). As Respondent tells it, most deposits to inmate commissary accounts were made using funds received from relatives or from the inmates themselves; on those unenumerated occasions when he deposited his own funds, they were intended simply as "gifts." Respondent, however, acknowledges that he has no documentation of any of these transactions. Had Respondent been able to account for the source and purpose of his deposits into inmate commissary accounts, this investigation undoubtedly would have reached a far swifter conclusion. As it stands, his utter lack of proper recordkeeping has protracted what should have been a straightforward review of his required records. Respondent's failure to maintain any of these basic records violates Rule 1.15(d), former DR 9-102(D), and Rule 1.15(j), former DR 9-102(J), which subjects to discipline attorneys who fail to maintain such records.
In his testimony of December 21, 2010, Respondent claimed ignorance of Rules requiring the creation and maintenance of records pertaining to an attorney's law practice. When questioned about his familiarity with ethical standards governing attorneys admitted to practice in New York, Respondent said he had never "read through" the Rules. While Respondent admitted to some past acquaintance with the provisions governing segregation of funds, he said that he did not believe they applied to the relatively small sums he claimed to have received on behalf of clients.
To remain a member of the New York Bar, attorneys must affirm on the biennial registration statement submitted to the New York State Office of Court Administration that they have read and are in compliance with, among other provisions of the state court rules, DR 9-102 (current Rule 1.15). Since 2000, Respondent has filed five such registration forms — dated November 15, 2000; December 6, 2002; November 12, 2004; February 28, 2007; and January 7, 2009 — with the Office of Court Administration, each of which bears his signature attesting to his knowledge of and compliance with DR 9-102, among other provisions of the Rules of the Appellate Division for the First Department. These false certifications to the State Bar make Respondent's total disregard for the Rules' recordkeeping requirements, for a period of no less than seven years, that much more egregious.
Failure to Cooperate with an Investigation by a Grievance Committee
Ethical Standards
Under the Rules, a lawyer is subject to discipline if he "engages in conduct that is prejudicial to the administration of justice." Rule 8.4(a), (d); DR 1-102(A)(1), (5). This provision imposes upon attorney respondents "a duty to cooperate with an investigation into allegations of misconduct"; failure to do so is considered an independent violation of the Rules. In re Saghir, M-2-238, 2009 U.S. Dist. LEXIS 1112657, at *37 (S.D.N.Y Nov. 30, 2009) (citing cases). Related to this obligation is Rule 1.15(j), former DR 9-102(J), which makes it an independent violation to fail to produce records required to be maintained pursuant to Rule 1.15, former Disciplinary Rule 9-102, in response to a notice or subpoena for documents in connection with an investigation by a grievance committee. Rule 1.15(j); DR 9-102(J). Lawyers who fail to produce such records in response to discovery requests, "shall be deemed in violation of these Rules and shall be subject to disciplinary proceedings." Rule 1.15(J); DR 9-102(j).
Application to Respondent's Conduct
The evidence admits little doubt that Respondent has failed to cooperate with the Committee's investigation into his conduct in violation of Rule 1.15(j), former DR 1.15(J) (failure to produce records in response to a subpoena for documents in connection with an investigation by a Grievance Committee) and Rule 8.4, former DR 9-102 (censuring conduct prejudicial to the administration of justice). What began as an investigation into allegations of improper solicitation of federal inmates as clients has been effectively stalled for over a year because of Respondent's failure to respond to document requests and because of his apparent inability to produce documents required to be maintained under the Rules.
Over four months elapsed between the date the Committee issued its first Order To Show Cause, dated December 16, 2009, and Respondent's answer, which he made after obtaining multiple extensions from the Committee. As a result of the response's inadequacy, a deposition notice and document request were issued to elicit information concerning Respondent's recordkeeping practices and handling of funds. The document request was returnable two weeks from its date of issue and the deposition was scheduled 19 days thereafter. Another five months elapsed before Respondent made his first substantive response to the document request. In the interim, investigating counsel granted two requests for extensions. When, despite these extensions, Respondent ultimately failed to produce documents or to appear for his belated deposition, the Committee issued a second Order To Show Cause, this time addressing Respondent's apparent failure to cooperate. When this second Order To Show Cause failed to elicit a prompt or adequate response, the Committee issued an order of interim suspension. Only then did Respondent begin to comply with discovery requests.
Respondent's belated production of documents has been piecemeal and, by his own admission, incomplete. Respondent acknowledged in his testimony of December 21, 2010, that he had not searched for the checkbooks or check stubs sought by the document request that was issued on the May 19, 2009. Further, despite his July 2009 testimony that he possessed bank account records dating back to 2000 and made regular notations concerning the payment and receipt of funds by his law practice, he ultimately produced only partial bank account records that he had requested from his bank and received as discovery in his ongoing matrimonial litigation. In explanation, Respondent suggested that the records he believed were in his possession had either been destroyed in floods or removed by his ex-wife when she moved out of their shared residence in late 2008 or early 2009. Respondent recalled that the floods in question occurred in 2005 and 2007, and receipts attached to his response to the Third Order To Show Cause show repair work to Respondent's basement in June 2007, June 2009, and October 2009, suggesting that he would have known at the time of his July 2009 deposition whether he still possessed such records. Despite this, Respondent insisted that when first deposed, he had believed he possessed at least some bank records and only realized they were missing when he first searched for them sometime after receiving the document request. Even assuming arguendo that this account is true, Respondent chose to request multiple extensions rather than inform the investigating attorney that the records were missing, and failed to produce any bank records in his possession that postdated either the floods or his wife's exodus. Nor, even now, has he completed his rolling production of records requested from his bank for the period 2003 through 2009.
Notwithstanding his recent efforts, Respondent's persistent and often unexcused delays, his misleading statements concerning documents in his possession, and his final incomplete production all evidence a knowing failure to cooperate with this investigation. Rule 8.4(a), (d); DR 1-102(A)(1), (5); Rule 1.15(j); DR 9-102(J).
Mitigating Factors
Respondent has offered several explanations in mitigation of his mishandling of client and third-party funds, his failure to comply with the Rules' recordkeeping requirements, and his repeated delays in complying with discovery requests. According to Respondent, over the past year, as well as earlier, he has been preoccupied by matrimonial litigation, the care of his two minor children, serious medical problems, and the demands of his law practice, all of which caused him to neglect his obligations to the Committee. Notwithstanding these vicissitudes, he now assures the Committee that he is confident of his ability to comply with the Rules going forward, and requests that, in lieu of suspending or striking his name from the role of attorneys admitted to this Court, the Committee impose an oversight program with quarterly reporting requirements to ensure his continued compliance.
The Committee also notes that various members of the legal community, Respondent's local community, and his family have submitted letters on his behalf. These letters describe a man valued by his friends and family and respected as a diligent professional. Although the letters do not speak to the violations at issue here, the Committee is mindful of the esteem accorded Respondent by those who have written those letters.
CONCLUSION
The ethical provisions governing the handling of funds belonging to others and appropriate recordkeeping are among the Rules most strictly enforced for a reason — one which the courts of New York articulated long ago:
The purpose of keeping proper books of account, vouchers, receipts, and checks is to be prepared to make proof of the honesty and fair dealing of attorneys when their actions are called in question, whether in litigation with their clients or in disciplinary proceedings, and it is a part of the duty which accompanies the relation of attorney and client.In re Phillies, 17 A.D.2d 93, 101, 231 N.YS.2d 601, 608 (4th Dep't 1962) (quoting In re O'Neill, 228 A.D. 518 (1st Dep't 1930)). Compliance with these provisions is no mere formality, but a duty owed to the Bar of this Court, the Bar of this State, and above all to the client, who often entrusts counsel not only with his legal interests but with his wallet as well. The Committee is sympathetic to Respondent's chaotic personal life and impressed by the letters of support offered on his behalf. But his continuous violation of the Rules over a period of years, brought to light only by chance in this investigation, cannot be ignored. Lawyers who struggle, as Respondent has, to comply with the Rule requirements have an obligation to seek help, either from other members of the legal community or from their local bar associations, almost all of which offer free and confidential services for this very purpose. A lawyer's personal misfortune can help explain, but cannot excuse, a failure to comply with the ethical tenets of our profession. These violations, when coupled with Respondent's non-compliance and dilatory conduct in connection with this investigation, leave the Committee no reasonable alternative to imposing what the Committee regards as the most lenient sanction under the circumstances, a two-year suspension.
For the reasons discussed herein, Respondent is suspended from practicing law before the bar of this Court for a period of two years.
SO ORDERED.