Matter of Kofman
2021 NY Slip Op 04550
| N.Y. App. Div. | 2021Background
- Martin E. Kofman, admitted 1987, was criminally convicted after pleading guilty (Aug. 9, 2017) to conspiracy to make false statements to lenders (18 U.S.C. § 371) arising from a mortgage-fraud scheme.
- Conduct: Kofman sent a letter to Capital One falsely representing his client Samuel Rubin had deposited $2 million in Kofman’s IOLA escrow to satisfy loan-to-value requirements; the funds were from a third party and were returned days later.
- Criminal disposition: guilty plea to one count, sentenced Apr. 10, 2018 to two years’ probation and a $500 fine; other related charges dismissed in satisfaction of plea.
- Procedural history: this Court entered an interim suspension on July 31, 2019 and referred the matter to a Special Referee; hearing held Nov. 7, 2019; Special Referee reported Mar. 15, 2020 finding respondent failed to rebut the need for public discipline.
- Mitigation: court found extraordinary mitigation — longstanding, genuine public service, remorse, and no prior disciplinary history.
- Disposition: Court confirmed the Special Referee’s report and suspended Kofman from the practice of law for two years, with credit for the time already served under the July 31, 2019 interim suspension; respondent may apply for reinstatement subject to conditions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether to confirm the Special Referee's report | Confirm report; impose public discipline | Confirm report but request one-year suspension retroactive to interim suspension | Report confirmed; respondent's request otherwise denied |
| Appropriate measure of discipline | Significant public discipline (suspension/disbarment) given fraud and deceit | Shorter suspension (one year) in light of mitigation | Two-year suspension imposed, crediting interim suspension |
| Role of mitigation in discipline | Mitigation considered but does not outweigh criminal fraud | Mitigation (public service, remorse, no prior discipline) warrants reduced suspension | Mitigation substantially credited but not sufficient to avoid two-year suspension |
| Credit for interim suspension and reinstatement conditions | Implicitly supports credit for interim suspension | Sought retroactive application to July 31, 2019 | Credit granted for time elapsed; respondent may immediately apply for reinstatement and must meet regulatory requirements |
Key Cases Cited
- Matter of Saraco, 164 A.D.3d 69 (crediting interim suspension in assessing discipline)
- Matter of Duoba, 227 A.D.2d 69 (crediting interim suspension in assessing discipline)