Two Rochester attorneys disciplined by Appellate Division, Fourth Department (12794)

The Appellate Division, Fourth Department, handled three attorney discipline matters, two involving attorneys from the Rochester area, in its latest round of decisions. They are:

Matter Of David Isaac Berlowitz, An Attorney, Respondent. Grievance Committee Of The Seventh Judicial District, Petitioner. — Order of suspension entered. Per Curiam Opinion: Respondent was admitted to the practice of law by this Court on April 5, 1967, and maintained an office for the practice of law in Rochester. The Grievance Committee filed a petition charging respondent with acts of professional misconduct arising from his use and maintenance of his attorney trust account. Respondent filed an answer denying material allegations of the petition. The Referee filed a report, which the Grievance Committee moves to confirm.

The Referee found that respondent issued from his attorney trust account 22 checks that were dishonored for insufficient funds; that he allowed legal fees to accumulate in his trust account and withdrew the fees by issuing checks drawn on the trust account that were payable to cash; that the balance in the trust account was consistently less than the amount of his clients’ interests; and that he failed to keep required records.

We confirm the findings of fact made by the Referee and conclude that respondent violated the following Disciplinary Rules of the Code of Professional Responsibility:

DR 1-102 (a) (7) (22 NYCRR 1200.3 [a] [7]) — engaging in conduct that adversely reflects on his fitness as a lawyer;

DR 9-102 (a) (22 NYCRR 1200.46 [a]) — misappropriating funds and commingling clients’ funds with personal funds;

DR 9-102 (b) (1) (22 NYCRR 1200.46 [b] [1]) — failing to maintain clients’ funds in a special account separate from his business or personal accounts;

DR 9-102 (c) (3) (22 NYCRR 1200.46 [c] [3]) — failing to maintain complete records of all funds, securities and other properties of a client or third person coming into his possession and render appropriate accounts to the client or third person regarding them; and

DR 9-102 (d) (1) (22 NYCRR 1200.46 [d] [1]) — failing to maintain required records of bank accounts.

We have considered the matters in mitigation, including respondent’s previously unblemished record and the fact that no client suffered a monetary loss as a result of respondent’s misconduct. Accordingly, after consideration of all of the factors in this matter, we conclude that respondent should be suspended for two years and until further order of the Court (See, Matter of Morrison, –– AD2d __ [decided Dec. 27, 2000]; Matter of Bennett, 265 AD2d 33). Present: Green, J.F., Pine, Hayes, Scudder and Burns, JJ. (Filed Mar. 21, 2001.)

Matter Of John J. Ferlicca, An Attorney, Respondent. Grievance Committee Of The Seventh Judicial District, Petitioner. — Order of censure entered. Per Curiam Opinion: Respondent was admitted to the practice of law by this Court on January 12, 1989, and maintained an office for the practice of law in Rochester. The Grievance Committee filed a petition charging that respondent, as a candidate in a primary election for the position of City Court Judge, approved the dissemination of a political mailer containing false and misleading statements about his opponent. Respondent filed an answer admitting the factual allegations of the petition but denying that he intended to mislead or deceive voters, and a Referee was appointed to conduct a hearing. The Referee filed a report that the Grievance Committee moves to confirm.

The Referee found that respondent knew or should have known when he approved the form and content of the political mailer that it contained false statements about his opponent and that it contained a misleading account of the facts surrounding the arrest and release of a rape suspect.

We confirm the findings of fact made by the Referee and conclude that respondent violated the following Disciplinary Rule of the Code of Professional Responsibility.

DR 8-102 (b) (22 NYCRR 1200.43 [b]) — knowingly making false accusations against a judge.

We have considered the matters in mitigation submitted by respondent, including his expression of remorse, his public acknowledgment of responsibility for his actions and his previously unblemished record. Accordingly, we conclude that respondent should be censured. Present: Green, J.P., Pine, Hayes, Scudder and Burns, JJ. (Filed Mar. 21, 2001.)

Matter Of Edward M. Schatz, An Attorney, Respondent. Grievance Committee Of The Eighth Judicial District, Petitioner. — Order of censure entered. Per Curiam Opinion: Respondent was admitted to the practice of law by this Court on January 9, 1992, and formerly maintained an office for the practice of law in Buffalo. The Grievance Committee filed a petition charging respondent with acts of professional misconduct arising from his use and maintenance of his attorney trust account. Respondent filed an answer denying material allegations of the petition, and a Referee was appointed to conduct a hearing. The Referee filed a report, which the Grievance Committee moves to confirm and respondent cross-moves to disaffirm.

The Referee found that respondent deposited into his attorney trust account funds that he accepted as retainers and that he allowed earned legal fees to accumulate in the account. Additionally, the Referee found that, although respondent did not use clients’ funds for personal purposes, he issued checks drawn on the trust account for personal and business expenses and made payable to cash or to himself.

We confirm the findings of fact made by the Referee and conclude that respondent violated the following Disciplinary Rules of the Code of Professional Responsibility.

DR 1-102 (a) (7) (22 NYCRR 1200.3 [a] [7]) — engaging in conduct that adversely reflects on his fitness as a lawyer;

DR 9-102 (a) (22 NYCRR 1200.46 [a]) — commingling clients’ funds with personal funds;

DR 9-102 (b) (1) (22 NYCRR 1200.46 [b] [1]) — failing to maintain clients’ funds in a special account separate from his business or personal accounts;

DR 9-102 (d) (1) (22 NYCRR 1200.46 [d] [1]) — failing to maintain required records of bank accounts; and

DR 9-102 (e) (22 NYCRR 1200.46 [e]) — making withdrawals from a special account payable to cash rather than to a named payee.

In mitigation, we note the Referee’s findings that respondent did not convert or misappropriate clients’ funds, that he was candid and that he expressed remorse. Accordingly, we conclude that respondent should be censured. Present: Green, J.P., Pine, Hayes, Hurlbutt And Scudder, JJ. (Filed Mar. 21, 2001.)