Appellate Division: Second Judicial Department

M39135

K/nal

A. GAIL PRUDENTI, P.J.

ANITA R. FLORIO

HOWARD MILLER

ROBERT W. SCHMIDT

PETER B. SKELOS, JJ.

2006-01126 In the Matter of Keith G. Rubenstein, an attorney and counselor-at-law. Grievance Committee for the Second and Eleventh Judicial Districts, petitioner; Keith G. Rubenstein, respondent. Attorney Registration No. 2395473)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Second and Eleventh Judicial Districts for an order: 1) suspending the respondent from the practice of law pending consideration of charges of professional misconduct against him, pursuant to 22 NYCRR 691.4(l)(1)(ii) and (iii), upon a finding that the respondent is guilty of professional misconduct threatening the public interest in that he has made substantial admissions under oath that he committed acts of professional misconduct and based upon uncontroverted evidence of professional misconduct; 2) authorizing the institution and prosecution of a disciplinary proceeding based upon the petition dated January 31, 2006; 3) directing the respondent to submit an answer to the petition; and 4) referring the issues raised by the petition and any answer thereto to a Special Referee to hear and report. Cross motion by the respondent for an order denying the Grievance Committee's motion to immediately suspend him and directing a prompt evidentiary hearing, to commence within 60 days of the court's order, based on the submitted charges. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the First Judicial Department on January 14, 1991.

Upon the papers submitted in support of the motion and cross-motion, it is

ORDERED that the motion of the Grievance Committee for the Second and Eleventh Judicial Districts is granted; and it is further,

ORDERED that pursuant to 22 NYCRR 691.4(l)(1)(ii) and (iii), the respondent, Keith G. Rubenstein, is immediately suspended from the practice of law in the State of New York, pending further order of the court; and it is further,

ORDERED that the respondent shall promptly comply with this court's rules governing the conduct of disbarred, suspended, and resigned attorneys (see 22 NYCRR 691.10); and it is further,

ORDERED that pursuant to Judiciary Law § 90, during the period of suspension and until further order of this court, the respondent, Keith G. Rubenstein, is commanded to desist and refrain from (1) practicing law in any form, either as principal or agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law of its application or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law; and it is further,

ORDERED that the Grievance Committee for the Second and Eleventh Judicial Districts is hereby authorized to institute and prosecute a disciplinary proceeding in this court against Keith G. Rubenstein, based on the petition dated January 31, 2006; and it is further,

ORDERED that Diana Maxfield Kearse, Chief Counsel to the Grievance Committee for the Second and Eleventh Judicial Districts, Renaissance Plaza, 335 Adams Street, Suite 2400, Brooklyn, N.Y. 11201-3745, is hereby appointed as attorney for the petitioner in such proceeding; and it is further,

ORDERED that within 20 days after service upon him of a copy of this decision and order on motion, the respondent shall serve an answer upon the petitioner and the Special Referee, and shall file the original answer in the office of the Clerk of this court; and it is further,

ORDERED that the issues raised by the petition and any answer thereto are referred to the Honorable Thomas Sullivan, a retired Associate Justice of the Appellate Division, Second Judicial Department, c/o Tracy & Stillwell, 1688 Victory Boulevard, Staten Island, N.Y. 10314, as Special Referee to hear and report within 60 days after the conclusion of the hearing on the submission of post-hearing memoranda; and it is further,

ORDERED that if the respondent, Keith G. Rubenstein, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency and the respondent shall certify to the same in his affidavit of compliance pursuant to 22 NYCRR 691.10(f); and it is further,

ORDERED that the respondent's cross motion is denied.

We find, prima facie, that the respondent is guilty of professional misconduct immediately threatening the public interest based upon his substantial admissions under oath, and upon other uncontroverted evidence of professional misconduct.

The respondent had previously testified as a witness in an investigation into allegations of professional misconduct on the part of Matthew C. Keenan, who was disbarred upon his resignation by opinion and order of this court dated May 9, 2005. The respondent maintains a full-time law practice in New York County. He entered into an employment agreement with a management company consisting of non-lawyers, who provided paralegal and management services to him, in exchange for 90% of the legal fees received by the respondent at the Long Island City office where he attempted to establish a personal injury practice. Although Mr. Keenan also maintained an office at the respondent's Long Island City address, the respondent had no affiliation with him. The proceeds of each personal injury settlement sent to the respondent at the Long Island City office were deposited into an attorney trust account. The respondent was unsure of the name of the bank and never personally wrote or signed a check on that account. The management company staff wrote checks on that account against the settlement proceeds and affixed the respondent's signature stamp to those checks. The management company's physical control of the premises extended to the respondent's client files.

The respondent signed a letter to GEICO insurance company on letterhead falsely indicating that he and Mr. Keenan had formed a professional corporation. The objective of this misrepresentation was to induce GEICO to issue a settlement check to the respondent and Mr. Keenan's client which the respondent could negotiate without Mr. Keenan's signature.

By letter dated January 5, 2005, the Grievance Committee advised the respondent's attorney that it had commenced a sua sponte investigation into his Long Island City law practice and requested copies of his bank records relative to that office.

At a second investigative appearance on January 26, 2005, the respondent was represented by counsel and provided a copy of his employment agreement with Gem & R Management Corporation (hereinafter Gem & R). Pursuant to that agreement, the respondent was an employee of Gem & R which, in turn, owned the respondent's client files. Gem & R referred clients to the respondent and, with the respondent's acquiescence, its staff prepared and filed retainer closing statements and affixed respondent's signature stamp to them without the respondent's review. None of those statements indicated referrals by Gem & R. Rather, the statements falsely indicated that those clients had not been referred by anyone.

In some cases on which the respondent was attorney of record, the staff of Gem & R prepared and filed summonses and complaints without the respondent's review. Staff also prepared and executed retainer agreements and stamp endorsed settlement checks before depositing them into a non-escrow account at Independence Community Bank. The respondent never personally negotiated settlements with the insurance companies, never endorsed a settlement check received at the Long Island City office, and never even met many of his clients. The respondent never reviewed a bank statement until the Grievance Committee requested copies of them. He was unsure whether he was a signatory on that account, was unaware of the source of funds used to pay expenses related to his clients' cases, did not maintain a ledger, could not explain the nature and purpose of several checks drawn on the account, and was unaware of the source of funds in that account. The respondent's sole knowledge about the bank account into which his clients' funds were deposited came from what he was told by people from Gem & R or from his recent review of bank records.

A petition containing nine charges of professional misconduct based upon the aforesaid allegations has been served on the respondent along with the Grievance Committee's motion.

In support of his cross motion, the respondent submits that, based upon the isolated nature of his misconduct, the severance of his ties with Gem & R, his unequivocal cooperation with the Grievance Committee, his candid admissions regarding his brief and ill-advised relationship with Gem & R, his previously unblemished record, and his reputation for honesty and integrity, the standards warranting an immediate suspension from practice have not been met. While the respondent does not minimize the severity of his errors, he contends that he does not pose an immediate risk of harm to the public and should be afforded a speedy evidentiary hearing.

While the respondent's opposition focuses upon his full cooperation with the Grievance Committee, his retreat from the practice of law, and the absence of harm to clients, he has failed to controvert the underlying allegations of serious professional misconduct surrounding his efforts to develop a practice in the personal injury field.

The respondent's contentions notwithstanding, we find that he constitutes an immediate threat to the public interest. Accordingly, the Grievance Committee's motion is granted, the respondent is suspended pursuant to 22 NYCRR 691.4(l)(1)(ii) and (iii) upon a finding that he is guilty of professional misconduct immediately threatening the public interest, the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against the respondent based upon the petition dated January 31, 2006; the respondent is directed to submit an answer within 20 days; and the matter is referred to a Special Referee to expeditiously hear and report, and the respondent's cross motion is denied.

PRUDENTI, P.J., FLORIO, MILLER, SCHMIDT and SKELOS, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court