In the Matter of MICHAEL S. ETKIN, an Attorney, Respondent. DEPARTMENTAL DISCIPLINARY COMMITTEE FOR THE FIRST JUDICIAL DEPARTMENT, Petitioner.
Supreme Court, Appellate Division, First Department, New York
November 27, 2012
102 A.D.3d 151 | 957 N.Y.S.2d 287
APPEARANCES OF COUNSEL
Jorge Dopico, Chief Counsel, Departmental Disciplinary Committee, New York City (Raymond Vallejo of counsel), for petitioner.
Hal R. Lieberman for respondent.
Per Curiam.
Respondent Michael S. Etkin was admitted to the practice of law in the State of New York by the First Judicial Department on April 9, 1979. At all times relevant to this proceeding, respondent maintained an office for the practice of law in New Jersey where he was admitted in 1981.
The Departmental Disciplinary Committee (Committee) seeks an order, pursuant to
Respondent‘s misconduct, his failure to safeguard a legal fee that belonged to his former law firm, initially came before the Supreme Court of New Jersey Disciplinary Review Board (DRB) based on an August 2007 disciplinary stipulation between respondent and the New Jersey Office of Attorney Ethics (OAE). Respondent stipulated to violations of
The stipulated facts are as follows: from April 1998 to February 2000, respondent was a non-equity partner of the law firm Ravin, Sarasohn, Cook, Baumgarten, Fisch & Rose P.C. (Ravin firm). On February 12, 2000, shortly before the dissolution of the Ravin firm in April 2000, respondent and 16 other attorneys joined the law firm of Lowenstein Sandler P.C. (Lowenstein firm), his current firm.
While he was with the Ravin firm, respondent had worked on a securities litigation case, In re Reliance. All legal fees generated by respondent were to be paid at the conclusion of that case. After respondent joined Lowenstein, he continued to provide legal services in the Reliance matter and earned legal fees to which Lowenstein was entitled. On February 27, 2003, approximately three years after he left the Ravin firm, respondent was paid in full for his services in the Reliance matter via a check for $217,639.50 payable to Michael S. Etkin, Esq. The Ravin firm‘s share of this payment was $148,935, while the Lowenstein
On April 21, 2003, respondent transferred $110,000 from his bank account to his personal money market account. According to the stipulation, $110,000 represented the approximate amount of the Ravin firm‘s fee less respondent‘s claim for unpaid salary. The funds remained in the money market account for 17 months after respondent had received the $217,639.50 check. During the interim, the balance in the account fell below $110,000 on 23 occasions. Respondent stipulated that the shortages, which ranged from $280.10 to $34,100.83, were the result of his issuing checks for personal expenses, ATM withdrawals, or transfers to another personal bank account he shared with his wife, and that at all times, he had enough money in both of his personal accounts to cover the Ravin firm‘s $148,935 total share of the Reliance fee.
On January 30, 2004, an attorney at Lowenstein Sandler wrote a letter to counsel for the Ravin firm, regarding the status of the Reliance matter. This letter misrepresented the status of the Reliance settlement and did not disclose that the fee had already been paid out to respondent 11 months earlier on February 27, 2003. Respondent stipulated that the Lowenstein attorney consulted with him regarding the proposed content of the letter and that the attorney was unaware the letter contained the misrepresentations set forth above. Respondent was also aware that the letter would be sent to Ravin‘s counsel containing these misrepresentations.
On July 15, 2004, 17 months after he received the Reliance check, respondent sent a cashier‘s check in the amount of $111,905 payable to the Ravin firm, representing the net fee to which the Ravin firm was entitled in connection with the Reliance matter, after setting off his claim for unpaid salary in the amount of $35,400. As of August 2007 (the date the stipulation with the OAE was executed), respondent‘s claim against the Ravin firm for unpaid salary was still unresolved. Pursuant to a consent order entered by an arbitrator, respondent deposited the sum of $45,676.47 into escrow, representing his $35,400 claim for unpaid salary plus $10,276.47 interest on the monies he held back from the Ravin firm.
In June 2008, the OAE and respondent‘s counsel filed separate motions to appeal the DRB‘s decision. By order of February 17, 2009, the New Jersey Supreme Court denied both motions for leave to appeal and remanded the matter to the OAE to designate a special investigator. A special investigator was appointed and, thereafter, filed a report concluding that a formal complaint charging additional unethical conduct was not warranted. By order of January 31, 2011, the New Jersey Supreme Court remanded the matter to the DRB to determine the appropriate discipline to be imposed based on the parties’ stipulation and, additionally ordered that, on remand, the matter was to be presented by the Director of the Office of Attorney Ethics or his designee. The OAE and respondent once again recommended a reprimand. The DRB disagreed and determined that a six-month suspension was most appropriate. By order dated December 8, 2011 the New Jersey Supreme Court modified the six-month suspension recommendation and suspended respondent from the practice of law for three months, effective January 4, 2012 (In re Etkin, 208 NJ 412, 31 A3d 622 [2011]).
By this proceeding the Committee seeks an order pursuant to
None of the defenses to reciprocal discipline enumerated in
Accordingly, the Committee‘s petition for an order imposing reciprocal discipline should be granted and respondent suspended from the practice of law for a period of three months, nunc pro tunc to January 4, 2012.
Mazzarelli, J.P., Friedman, DeGrasse, Freedman and Abdus-Salaam, JJ., concur.
Respondent suspended from the practice of law in the State of New York for a period of three months, nunc pro tunc to January 4, 2012 and until further order of this Court.