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Attorney Grievance Commission v. Zuckerman4/13/2005
atest (and the only) monetary loss as a result of events here involved, did not improperly misappropriate any monies for himself from the trust account or in any other way profit or benefit from Ms. Becker's defalcations. Immediately upon becoming aware of Ms. Becker's theft, respondent closed his then existing trust account and at once opened a new trust account, in the same bank, to which he properly transferred the remaining proceeds of the former account. At Bar Counsel's request, respondent has from time to time produced thousands of pages of documents and records pertaining to both his former and new trust account. Those records included bank statements containing entries upon entries pertaining to deposits and withdrawals from the trust accounts, from which Bar Counsel's office gleaned and stated in their Petition for Remedial Action that respondent's trust account had a negative balance on May 26, 2000.
"The negative balance did not appear in the statement for May 26, 2000. The existence of the negative balance was repeated several times in papers filed in this case or in discovery material furnished by petitioner until Bar Counsel's office informed respondent's counsel shortly before trial that the date so alleged was wrong and should have been May 16, 2000. This Court permitted the petitioner to amend the date in the petition to May 16, 2000 at the evidentiary hearing.
"While checks pertaining to settled clients' cases were on some occasions not deposited in respondent's trust account prior to issuance of checks to the clients involved for their respective shares of the proceeds of the settlements, such payments to clients were never made prior to settlement of the case, receipt and execution of all settlement documents and receipt of the settlement funds. Such payments were not advanced payments. Any funds to pay medical providers being held in respondent's trust account at the time of Bar Counsel's investigation of his trust accounts were held for good reasons, although for too long a period of time.
"Interested medical providers were fully aware when cases were settled. Such providers, in order to keep themselves informed in that regard, frequently telephoned respondent's office and were kept informed of the status of the cases in which they were interested. Moreover, no medical provider complained to respondent about any lack of notice that respondent failed to give. Any duplicate payments and failure by respondent to remove earned fees promptly from his trust account were unintentional oversights which were promptly addressed when brought to the respondent's attention. Respondent never made any loans to clients while litigation was pending or contemplated. Moreover, at the evidentiary hearing, petitioner withdrew its charges regarding any alleged loans. Respondent has expended many hours, much effort and considerable funds rectifying the consequences of his employee's defalcations and has taken substantial steps, including installing an accounting system recommended by Bar Counsel to maintain his trust account.
"Despite the mitigating factors described above, there still exist several Rule violations. The evidence shows that respondent was deficient in the management of his trust account for a period of several years. He regularly failed to promptly pay medical providers and paid clients and others with funds belonging to others. Both practices are violations of Rule 1.15, which would have been avoided had respondent closed the files when settlement occurred. Had he done this, the funds would not have been available for Ms. Becker to steal. Furthermore, the giving of check-writing authority to an unproven, non-lawyer employee within is further evidence of r
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