Appellate Division: Second Judicial Department

M111898

E/ct

WILLIAM F. MASTRO, J.P.

REINALDO E. RIVERA

PETER B. SKELOS

MARK C. DILLON

RANDALL T. ENG, JJ.

2010-07179 In the Matter of Steven Rosenberg, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Steven Rosenberg, respondent. (Attorney Registration No. 2486157)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Tenth Judicial District for an order: (1) suspending the respondent from the practice of law, pursuant to 22 NYCRR 691.4 (l)(1)(i), pending further order of the Court based upon his professional misconduct immediately threatening the public interest emanating from his obstruction of the legitimate function of the Grievance Committee in its investigation of two complaints of professional misconduct; (2) in effect, authorizing it to institute and prosecute a disciplinary proceeding against the respondent based on an amended petition dated August 23, 2010; and (3) referring any issues raised by the amended petition and any answer thereto to a Special Referee to hear and report. Cross motion by the respondent for an order staying the investigation and allowing him to complete a monitoring program pursuant to 22 NYCRR 691.4(m). The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on June 10, 1992.

Upon the papers submitted with respect to the motion and cross motion, and the papers submitted in opposition thereto, it is

ORDERED that the motion is granted, and pursuant to 22 NYCRR 691.4(l)(1)(i), the respondent, Steven Rosenberg, 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, Steven Rosenberg, 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 on the Court's own motion, pursuant to Judiciary Law § 90, during the period of suspension and until further order of this Court, the respondent, Steven Rosenberg, 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 or 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 on the Court's own motion, the Grievance Committee for the Tenth Judicial District is hereby authorized to institute and prosecute a disciplinary proceeding in this Court against Steven Rosenberg, based on the amended petition dated August 23, 2010; and it is further,

ORDERED that Robert A. Green, Chief Counsel to the Grievance Committee for the Tenth Judicial District, 150 Motor Parkway, Suite 102, Hauppauge, N.Y. 11788, 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 order, the respondent, Steven Rosenberg, shall serve an answer upon the petitioner and the Special Referee, and shall file the original answer with this Court; and it is further,

ORDERED that the issues raised by the petition and any answer thereto are referred to Norma Giffords, Esq., Randazzo & Giffords, P.C., 3000 Marcus Avenue, Suite 1E11, Lake Success, N.Y. 11042, as Special Referee to hear and report, together with her findings on the issues, and to submit a report within 60 days after the conclusion of the hearing or the submission of post-hearing memoranda; and it is further,

ORDERED that if the respondent, Steven Rosenberg, 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).

We find, prima facie, that the respondent is guilty of professional misconduct immediately threatening the public interest based upon his failure to cooperate with the investigation by the Grievance for the Tenth Judicial District of two complaints of professional misconduct.

The predicate for the Grievance Committee's motion is the respondent's failure to respond to requests for information concerning two pending complaints, including his failure to provide financial records relating to his attorney trust account.

On or about January 19, 2010, the Grievance Committee received a notice from the Lawyers' Fund for Client Protection, pursuant to the Dishonored Check Reporting Rule, alleging that on November 23, 2009, a $50,000 check drawn on the respondent's attorney trust account at Citibank was dishonored due to insufficient funds. By letter dated January 28, 2010, the Grievance Committee advised the respondent that he was the subject of an investigation and requested his answer and the production of bank and bookkeeping records within 20 days. The Grievance Committee did not receive a response.

On March 3, 2010, the Grievance Committee received a complaint against the respondent from Matteo Patisso alleging that the respondent had neglected his legal matters. By letter dated March 8, 2010, the Grievance Committee requested the respondent's answer within 10 days. No response was received.

By certified letter dated March 16, 2010, the Grievance Committee requested the respondent's answer to the Lawyers' Fund Complaint and the production of bank and bookkeeping records within 10 days. Although postal records reflect delivery on March 18, 2010, no response was received.

A judicial subpoena and a subpoena duces tecum, both dated April 9, 2010, which directed the respondent to appear at the Grievance Committee's offices on May 13, 2010 and to produce records and files relating to the Lawyers' Fund and Patisso complaints, were served on the respondent's office on April 16, 2010. The respondent appeared pursuant to subpoena and gave testimony on May 13, 2010. He claimed to have seen the subpoena only the day before so that he was not as prepared as he could be on an adjourned date.

During his testimony, the respondent admitted receiving the Grievance Committee's January 28, 2010, letter in connection with the Lawyers' Fund complaint and failing to respond. He did not recall seeing the letter of March 16, 2010, inasmuch as the office to which it was delivered was more of a mail drop rather than an office from which he practiced. The respondent also admitted that he had received the Grievance Committee's letter dated March 8, 2010 in connection with the Patisso complaint and failed to respond. In addition, the respondent failed to comply with those portions of the judicial subpoena duces tecum which directed him to produce bank and bookkeeping records relating to his attorney trust account and which directed him to produce all of his files on the Patisso complaint. The respondent testified that he couldn't find certain bank and bookkeeping records, and claimed to have the remaining Patisso files in his office. Although he consented, during his examination under oath, to submit answers to the Lawyers' Fund and Patisso complaints and to submit the requested records, the respondent failed to do so.

The respondent is also the subject of another complaint by James Vagnini, Esq., who alleges that the respondent neglected a legal matter of Vagnini's client, handled a matter which he knew or should have known that he was not competent to handle without associating with an attorney who was competent to handle it, and failed to cooperate with another attorney.

Based on the respondent's obstruction of its investigation, the Grievance Committee moves for the respondent's interim suspension and for authorization of a disciplinary proceeding against him based on an amended petition dated August 23, 2010.

The respondent cross-moves for an order staying the Grievance Committee's investigation and allowing him to complete a monitoring program sponsored by a court-approved Lawyers Assistance Program (LAP). The respondent's counsel submits that diversionary placement is appropriate inasmuch as the misconduct under investigation occurred during the time of the respondent's emotional infirmity, was directly related to the infirmity, and is in the best interest of the profession and the public. The respondent was recently diagnosed with major depressive disorder by John T. McCann, PhD. and has placed himself under the care of the Nassau County Bar Association LAP.

The respondent admits that he has one prior admonition for neglect.

During the course of the investigation, the respondent contacted the Nassau County Bar Association LAP director Peter Schweitzer, who referred him to Dr. McCann, a clinical and forensic psychologist, for psychological evaluation. Shortly thereafter, the respondent retained Chis McDonough, Esq., who ascertained that the respondent had severe difficulties addressing his mistakes because of his psychological problems even before the first complaint was received.

The respondent offered the report of Dr. McCann dated August 10, 2010, who concluded that the respondent was deeply impacted by his mother's death and internalized his pain and guilt, which turned to depression. The respondent "deteriorated emotionally" and became "psychologically paralyzed", which severely compromised his decision-making ability. The respondent agreed to enter into a minimum of 20 therapy sessions to address his depression. Dr. McCann offered an excellent prognosis and a return to a high level of functioning with continued treatment.

In opposition to the cross motion, the Grievance Committee points out that 22 NYCRR 691.4(m)(1) is not applicable to psychiatric or psychological disorders. That section is applicable to attorneys who may be suffering from alcoholism or other substance abuse or dependancy. Moreover, Dr. McCann failed to provide any support for his conclusion, and did not assert that the respondent is incapacitated from continuing to practice law. Dr. McCann's diagnosis of depression is based primarily on the emotional impact of the death of the respondent's mother, his report does not specify the date of death or the onset of the respondent's depression.

Contrary to the respondent's representation, he has an extensive disciplinary history. He received three personally delivered Admonitions dated March 16, 2005, for neglecting clients' matters, failing to adequately communicate with a client, misleading a client as to why his case was dismissed, and failing to cooperate with Grievance Committee investigations.

Significantly, the respondent never raised the issue of his depression until confronted with an application for his interim suspension. From the respondent's papers, it is not possible to determine when his illness became so debilitating that it caused him to become unable to cooperate with the Grievance Committee and to neglect client matters.

Under the totality of circumstances, the Grievance Committee's motion is granted, the respondent is suspended pursuant to 22 NYCRR 691.4(l)(1)(i) based on a finding that he constitutes an immediate threat to the public interest, the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against the respondent based on the amended petition dated August 23, 2010, the respondent is directed to submit an answer to that petition within 20 days, and the issues raised are referred to a Special Referee to hear and report. The respondent's cross motion to allow him to complete a monitoring program pursuant to 22 NYCRR 691.4(m) is denied because 22 NYCRR 691.4 (m), as presently drafted, does not apply to the respondent.

MASTRO, J.P., RIVERA, SKELOS, DILLON and ENG, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court