In thе Matter of MARC A. BERNSTEIN (Admitted as MARC ALAN BERNSTEIN), an Attorney, Respondent. DEPARTMENTAL DISCIPLINARY COMMITTEE FOR THE FIRST JUDICIAL DEPARTMENT, Petitioner.
Appellate Division of the Supreme Court of New York, First Department
October 12, 2010
[909 NYS2d 50]
Alan W. Friedberg, Chief Counsel, Deрartmental Disciplinary Committee, New York City (Eileen J. Shields of counsel), for petitioner.
Arthur L. Aidala, for respondent.
OPINION OF THE COURT
Per Curiam.
Respondent Marc A. Bernstein was admitted to the practice оf law in the State of New York by the First Judicial Department on February 8, 1982 under the name Marc Alan Bernstein. At all times relevant herein, respondent has maintained an office for the practice of law within the First Judicial Department.
By order entered April 23, 2009, this Court immediately suspended respondent from the practice of law pursuant to
In May and July 2009, respondent was charged in two separate indictments filed in Supreme Court, New York County, with nine counts of grand larceny in the second degree (
On April 5, 2010, respondent pleaded guilty to the felony charges in the first two indictments, as adjusted.1 As to the March 2010 indictment, he pleaded guilty to offering a false instrument for filing in the first degree, and two counts of repeatedly failing to file State income tax returns for the years 2003 through 2007.
Specifically, respondent admitted that between 2006 and 2009, he stole settlement and escrow funds from 16 medical malpractice and personal injury clients and a $900,000 deposit he was holding in escrow for a real estate purchaser. He also schemed to defraud approximately 13 additional clients in which he obtained property with a value in excess of $1,000. The total amount of his thеft is believed to be approximately $2.2 million. Respondent also admitted that his filed New York State income tax return for 2008 contained material false infоrmation and statements by which he understated and underpaid the taxes due on the money he stole by more than $50,000, and that he repeatedly failed to file State personal income tax returns from 2003 through 2007. Respondent was ordered to pay a minimum of $200,000 in restitution by June 3, 2010, his scheduled sentencing date, at which time a restitution hearing was to be held to determine the total amount of restitution to be ordered.
By petition dated May 12, 2010, the Disciplinary Committee seeks an order striking rеspondent‘s name from the roll of attorneys pursuant to
Respondent‘s conviction of New York felonies constitutes grounds for automatic disbarment under
By separate motion dated May 13, 2010, the Committee requests an order pursuant to
The Committee advises that beginning in early 2009, after it sought respondent‘s interim suspension, and continuing through the fall of 2009, it has received a “steady stream of complaints” from respondent‘s clients alleging that, not only did he fail to disburse their settlement funds to them but that he completely stopped communicating with them. In March/April 2009, the Committee was contacted by Jordan Hecht, Esq., from whom respondent had subleased an office in the Hecht law firm‘s suite, reporting that respondent‘s clients were coming to the office to get their files but he could not release them because the files did not belong to him. By June 2009, Mr. Hecht informed the Committee that respondent had removed his files from the office but left no instructions for contacting him.
During this same time period (Marсh 2009), the District Attorney‘s Office endeavored to assist the complainants in obtaining their files so they could prove respondent‘s thefts, and aided them in filing claims with the Lawyers’ Fund for Client Protection. According to an affidavit of Assistant District Attorney (ADA) Keith, in September 2009, Judge Carruthers ordered respondent to produce all client files to the District Attorney‘s Office for return to his former clients, but respondent produced only 15 files. On March 19, 2010, Judge Carruthers ordered respondent to produсe an inventory of his files by March 30, 2010, but he has not yet complied. ADA Keith further states that Archive Systems, Inc., has a storage facility in New Jersey at which respondent has placed dozens of boxes of files, yet respondent has not paid for the storage space and Archive‘s collection department is seeking payment. Based upon her conversation
The Committeе adds that respondent‘s files in the storage facility are in danger of being destroyed and respondent‘s conduct has, in effect, obstructed the remaining cliеnts from accessing their own files. Staff counsel notes that it is in respondent‘s own interest not to return said files so that his clients cannot prove their losses, therеby reducing the amount of restitution ordered by the court as well as the reimbursement he will owe to the Lawyers’ Fund.
Accordingly, the Committee‘s petition to apрoint an attorney pursuant
Gonzalez, P.J., Tom, Andrias, Nardelli and Román, JJ., concur.
Respondent disbarred, and his name stricken from the roll of attorneys and counselors-at-law in the State of New York, nunc pro tunc to April 5, 2010. Receiver appointed, as indicated.