Matter of Aris

Matter of Aris 2018 NY Slip Op 03633 Decided on May 10, 2018 Appellate Division, First Department Per Curiam Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 10, 2018 SUPREME COURT, APPELLATE DIVISION First Judicial Department
David Friedman,Justice Presiding,
Rosalyn H. Richter
Angela M. Mazzarelli
Barbara R. Kapnick
Ellen Gesmer, Justices.
M-117

[*1]In the Matter of Joram Jehudah Aris, an attorney and counselor-at-law: Attorney Grievance Committee for the First Judicial Department, Petitioner, Joram Jehudah Aris, Respondent.

Disciplinary proceedings instituted by the Attorney Grievance Committee for the First Judicial Department. Respondent, Joram Jehudah Aris, was admitted to the Bar of the State of New York at a Term of the Appellate Division of the Supreme Court for the First Judicial Department on July 16, 1979.

Jorge Dopico, Chief Attorney, Attorney Grievance Committee, New York (Jeremy S. Garber, of counsel), for petitioner.

Respondent pro se.

PER CURIAM

Respondent Joram Jehudah Aris was admitted to the practice of law in the State of New York by the First Judicial Department on July 16, 1979. At all times relevant herein, he has maintained an office for the practice of law within the First Judicial Department.

The Attorney Grievance Committee (Committee) is now seeking an order pursuant to the Rules for Attorney Disciplinary Matters (22 NYCRR) § 1240.9(a)(3) and (5) immediately suspending respondent from the practice of law, until further order of the Court, based upon his failure to comply with a lawful demand of the Committee and based upon other uncontroverted evidence of professional misconduct.

Specifically, the Committee alleges that respondent has failed to comply with its legitimate demands that he produce his bank and tax records for the estates of three deceased clients where he or his nonlawyer wife were appointed executor. In addition, the Committee states that there is uncontroverted evidence, in the form of detailed letters to respondent and bank records from one of the estate accounts and respondent's attorney trust account, showing that he repeatedly used estate funds for his own personal purposes over the course of five years.

The Committee commenced its investigation in February 2016 after receiving a complaint from a former client of respondent, that alleged, inter alia, that respondent neglected his real estate partition case to his detriment; brought a lawsuit against the client for legal fees by improperly serving the summons and complaint on an apartment in Riverdale, where the client never resided but where respondent controlled all access; defaulted in a legal malpractice case filed by the former client; drafted a will for an elderly neighbor, where the residuary beneficiary of the estate was a not-for-profit organization of which respondent was an officer; used the neighbor's coop apartment for his own personal purposes; and engaged in a will contest with the sister of another late client, where respondent conditioned a settlement stipulation on the sister's withdrawing her disciplinary complaint against him.

The former client also alleged that respondent had a significant role in the probate of one of the subject estates where the client, who died on August 27, 2009, left an estate valued by respondent at more than $2 million. The former client alleged that, based upon correspondence in the Surrogate's Court file, respondent was attempting to have an elderly and infirm first cousin of the deceased client, and another relative, sign a waiver and consent for probate of the will under which she would receive a $1,000 bequest.

In April 2016, respondent answered the complaint, asking that it be held in abeyance and that he not be required to produce "information, [d]iscovery [or] documentation" until the conclusion of the legal malpractice case pending against him in Supreme Court, Westchester County.

In January 2017, the Committee notified the complaining former client that it would defer further investigation until final resolution of the malpractice litigation.

By letter of July 17, 2017, the Committee informed respondent that the matters raised in the complaint were being re-opened for investigation and asked respondent to address not only the issues raised in the February 2016 complaint, but also those raised in subsequent letters sent to the Committee by the complaining former client and his attorney.

Specifically, in the client's May 23, 2016 letter to the Committee, he claimed that respondent drafted a false "sworn statement" dated September 20, 2010 over the client's signature on a blank page, without the client's knowledge or consent, purporting to be a detailed eyewitness account of a September 17, 2010 motor scooter accident involving respondent, where the client was not present and did not witness the accident. Attached to the client's attorney's June 21, 2017 letter to the Committee is the June 16, 2017 jury verdict in the client's malpractice action where the jury found the amount of damages caused by respondent's intentional deceit and/or willful delay in the real estate matter amounted to $100,000 (in violation of Judiciary Law § 487).

Notwithstanding receiving two extensions to file his answer to the complaint and letters, [*2]respondent filed an untimely response. Respondent advised that he would be appealing the jury verdict in the malpractice action; that no judgment for money damages had been served; that he did control the Riverdale coop, as the executor of the estate, and that the apartment had still not been sold, thereby tacitly acknowledging that the estate was still open 14 years after the client's death. Respondent did not dispute the allegation that the stipulation of settlement in another of the will contests required the decedent's sister to withdraw her disciplinary complaint, but suggested that this was initiated by her counsel since "her attorneys wanted to tie up loose ends, such as the outstanding Disciplinary Complaint, without admitting any wrongdoing on her part."

With respect to the third estate, respondent admitted drafting his client's will, and that eight years following her death, he had still not contacted the French relatives who were designated to receive bequests. Although the Committee asked respondent to provide "all legal papers including correspondence, pleadings, briefs and memoranda you have filed" in that estate matter, respondent produced no documents relating to the estate.

On October 10, 2017, the Committee sent respondent a subpoena duces tecum requiring his appearance and "[a]ll files, including but not limited to notes, e-mails, correspondence, pleadings, motions, petitions, wills, affirmations and affidavits" related to the four estates, his not-for-profit, and a Bronx County action he had filed against the former client.

On November 2, 2017, respondent appeared for his deposition and produced three bankers' boxes of documents regarding the estates, but did not produce any recent or current bank account records or tax filings for the estates, nor bank records for the $93,680 listed in the 2007 tax return for the not-for-profit as its net fund balance. At the deposition, and by subsequent letter, the Committee asked respondent to produce, inter alia, the three estates' bank and tax records and the not-for-profit 2007 bank records.

When he failed to produce the records, the Committee wrote respondent stating that if he did not respond to the document requests by December 12, it would file a motion for his immediate suspension for failure to comply. On December 11, respondent telephoned Committee staff asking for an extension so that he could retain a lawyer. The Committee extended his time to December 29, 2017 but warned respondent, orally and in writing, that whether or not he retained counsel by December 29, the documents must still be produced by that date.

On January 3, 2018, the Committee received a package that was dated December 29, 2017, enclosing only one document, to wit, a one-page summons with notice from September 2013, in Joram J. Aris v Carmen Z. Ortiz, the Bronx County action respondent had filed regarding his 2010 scooter accident, seeking $3 million in damages. Respondent also returned the signed transcript from his deposition and a 16-page errata sheet dated December 29, 2017, wherein he discussed, inter alia, his many medical problems, his intention to retire and wind down his 40-year law practice before his 65th birthday in February 2018, and that he wanted more time so that he could retain counsel prior to turning over bank records.

On January 4, 2018, the Committee sent respondent a letter by first class mail, certified mail return receipt requested and by email advising him that the requested documents were due December 29, 2017, whether or not he retained counsel, and, therefore, his failure to comply with a lawful demand of the Committee constituted grounds for his immediate suspension under 22 NYCRR 1240.9(a)(3). To date, respondent has not produced the requested bank and tax records for the three open estates.

By supplemental affirmation, the Committee argues that it has uncontroverted evidence in the form of detailed letters to respondent, and bank records from one of the estate accounts and from respondent's attorney trust account, showing that he "repeatedly and flagrantly used estate funds for his own personal purposes over the course of five years," with the total amount of misappropriation of funds from one estate alone exceeding $500,000, which merits his immediate suspension on the additional grounds of other uncontroverted evidence of professional misconduct pursuant to 22 NYCRR 1240.9(a)(5).

On January 9, 2018, the Committee obtained partial bank records for one of the estate accounts which had been subpoenaed from the bank. Upon review, the Committee has questions about the legitimacy of $484,662 in expenditures from this estate account that appeared to be completely unrelated to the estate but rather related to the respondent's personal finances. The Committee sets forth "the most troubling examples": respondent paid more than $44,000 for one son's university tuition and fees; $9,969 to his psychotherapist for therapy sessions; $82,593 to the IRS and $29,110 to New York State for his own personal tax bills; over $45,000 for various credit card bills; and $174,425 directly to himself.

Subsequently, the Committee discovered three additional checks respondent had drafted on one of the estate accounts indicating further misappropriation of estate funds. Together, these three checks raise the total amount respondent misappropriated from the estate account to $510,292.39.

The Committee subpoenaed respondent's bank and obtained partial bank records for his attorney trust account. Upon review, the Committee, once again, has numerous questions regarding checks respondent drafted for his own personal purposes that were funded by deposited checks from one of the estate accounts.

Accordingly, the Committee wrote to respondent asking him to explain these and other questionable personal expenditures made from his attorney trust account and provide related documents by February 2, 2018. Respondent has not replied to the Committee's questions, nor has he produced the requested documents.

The Committee contends that respondent has failed to comply with its legitimate demands that he produce his bank and tax records for the estates, and that his failure to respond to its detailed questions regarding his repeated violations of his fiduciary obligations as co-administrator of one of the estates by misappropriating hundreds of thousands of dollars for his own personal purposes, tens of thousands of which passed through his attorney trust account, further demonstrates his noncompliance with lawful demands of the Committee (see Matter of Freidman, 152 AD3d 89 [1st Dept 2017]; Matter of Evans, 142 AD3d 122 [1st Dept 2016]; Matter of Reid, 137 AD3d 25 [1st Dept 2016].

In addition, the Committee seeks respondent's suspension under 1240.9(a)(5) based upon the uncontroverted evidence of professional misconduct, including bank records, which demonstrate specific instances of respondent's personal use of estate funds (Matter of Rosenberg, 117 AD3d 47 [1st Dept 2014]; Matter of Kaye, 194 AD2d 99 [1st Dept 1993]; Matter of Rubin, 174 AD2d 38 [1st Dept 1991].

Respondent, who is now 65-years-old, notes that he "brought a very large suitcase with dozens of files pertaining to cases which I was asked to bring documentation" and then sat for his deposition; that he rejects the complainant's false representations concerning him and believes his former client is a "sociopath and con artist"; he also denies that he is intentionally "disregarding the judicial system or the Committee's investigation." Respondent states that from the first contact with Committee staff he advised that he was not taking on new clients, has made several motions to be relieved as counsel on cases, his health has deteriorated (which he extensively documents), and he has advised OCA of his retirement after 40 years of practice. Therefore, in light of his retirement, he suggests that it is unnecessary to suspend him and asks that his status as retired rather than suspended be acceptable to this Court. Respondent advises that because he does not want to be accused of stalling or hindering this proceeding, he won't ask for more time to fully respond to the Committee's allegations and assertions with which he disagrees.

The Committee notes that while respondent denies that he is failing to comply with a lawful demand of the Court or the Committee in an investigation, he still has not produced any of the financial records requested since October 2017, resulting in the instant interim suspension motion. Further, the Committee argues that respondent's self-proclaimed retirement on February 10, 2018 does not relieve him of his obligation to cooperate, and he remains a New York lawyer until such time as this Court orders his suspension or disbarment.

The Committee also points out that respondent has not controverted, denied, refuted or contested a single allegation in its supplemental affirmation seeking his immediate suspension on the additional ground of "uncontroverted evidence of professional misconduct" which is based upon the checks and bank statements produced by his bank that show that he converted more than $500,000 in funds from one of the estate accounts for his own personal purposes. Moreover, the Committee notes that although respondent received its supplemental affirmation on February 6, 2018, three days before the date of his February 9 affirmation in opposition, he is silent in the face of clear evidence of his conversion of estate funds for over five years.

Respondent has failed to provide records and documents repeatedly requested by the Committee and failed to provide an explanation regarding the many questionable expenditures from the estate accounts, which constitutes professional misconduct immediately threatening the public interest, and warrants his immediate suspension from the practice of law (Matter of Thomas, 155 AD3d 61 [1st Dept 2017]; Matter of Char, 153 AD3d 39 [1st Dept 2017]; Matter of Raum, 141 AD3d 198 [1st Dept 2016]; Matter of Connolly, 138 AD3d 1 [1st Dept 2016]; Matter of Anyikwa, 109 AD3d 76 [1st Dept 2013]).

Accordingly, the Committee's motion should be granted and respondent is suspended from the practice of law pursuant to 22 NYCRR 1240.9(a)(3) and (5), effective immediately, and until further order of this Court.

All concur.

Order filed. [May 10, 2018]

Motion is granted and respondent is suspended from the practice of law in the State of New York, effective immediately, and until further order of this Court.