Appellate Division: Second Judicial Department

M146759

E/ct

RANDALL T. ENG, P.J.

REINALDO E. RIVERA

PETER B. SKELOS

MARK C. DILLON

THOMAS A. DICKERSON, JJ.

2012-06116 In the Matter of Howard M. Sklar, admitted as Howard Marc Sklar, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Howard M. Sklar, respondent. (Attorney Registration No. 2325934)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Tenth Judicial District: (1) to suspend the respondent from the practice of law, pursuant to 22 NYCRR 691.4(l)(1)(i), (ii), and (iii), upon a finding that he is guilty of professional misconduct immediately threatening the public interest based upon his failure to cooperate with lawful demands of the Grievance Committee in connection with its investigation into his professional conduct, his substantial admissions under oath, and other uncontroverted evidence of professional misconduct; (2) to authorize the institution and prosecution of a disciplinary proceeding against the respondent based upon a verified petition dated June 12, 2012; and (3) to direct that a hearing be held before a Special Referee appointed to hear and report with respect to each of the issues raised by the charges set forth in the verified petition and any answer thereto. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on March 7, 1990, under the name Howard Marc Sklar.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the motion is granted; and it is further,

ORDERED that pursuant to 22 NYCRR 691.4 (l)(1) (i), (ii), and (iii), the respondent, Howard M. Sklar, admitted as Howard Marc Sklar, 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, Howard M. Sklar, admitted as Howard Marc Sklar, 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, Howard M. Sklar, admitted as Howard Marc Sklar, 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 the Grievance Committee for the Tenth Judicial District is hereby authorized to institute and prosecute a disciplinary proceeding in this Court, against Howard M. Sklar, admitted as Howard Marc Sklar, based on the verified petition dated June 12, 2012; and it is further,

ORDERED that Robert A. Green, Chief Counsel, 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 decision and order on motion, the respondent, Howard M. Sklar, admitted as Howard Marc Sklar, shall serve a copy of his answer to the petition upon the Grievance Committee and the Special Referee, and file the original with the Court; and it is further,

ORDERED that the issues raised by the verified petition and any answer thereto are referred to Honorable Elaine Jackson Stack, a retired Justice of the Supreme Court, Tenth Judicial District, One the Birches, Roslyn, N.Y. 11576-1717, 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, Howard M. Sklar, admitted as Howard Marc Sklar, 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 based upon his failure to cooperate with lawful demands of the Grievance Committee for the Tenth Judicial District in connection with its investigation into his professional conduct, his substantial admissions under oath, and other uncontroverted evidence of professional misconduct.

The instant motion emanates from the investigation of two complaints of professional misconduct against the respondent, as well as additional uncontroverted facts, as follows:

The Kershnar Complaint

On or about November 10, 2010, the Grievance Committee received a complaint from Melvin L. Kershnar, alleging that the respondent had failed to satisfy Kershnar's $2,500 lien against the proceeds of the settlement of the respondent's clients' personal injury action. By letter dated November 12, 2010, sent via first class mail, the Grievance Committee provided the respondent with a copy of Kershnar's complaint and requested that he submit a written answer within 10 days. Although the letter was not returned, no response was received. The Grievance Committee sent a further letter dated December 3, 2010, by first class and certified mail/return receipt requested, directing the respondent to answer Kershnar's complaint within 10 days and advising him that failure to respond to, or otherwise cooperate with, the Grievance Committee constituted professional misconduct independent of the underlying allegations. The respondent submitted a letter in response dated December 15, 2010, together with a copy of a check in the amount of $2,500 payable to Mr. Kershnar, dated that same date.

The Grievance Committee subsequently sent the respondent a letter on or about March 1, 2011, by first class mail, requesting that he provide copies of bank statements for his escrow account within 10 days. Although the letter was not returned by the post office, the respondent failed to submit a timely response. By letter dated March 14, 2011, sent by first class and certified mail/return receipt requested, and by facsimile, the Grievance Committee reminded the respondent of his obligation to cooperate and requested that he respond to their prior letter within five days. Although the return receipt was returned, signed, and the first class letter was not returned, the respondent failed to submit a timely response. On or about April 6, 2011, the Grievance Committee sent another letter, by first class and certified mail/return receipt requested, advising the respondent that the Grievance Committee could seek his immediate suspension if he failed to cooperate, and asking him to respond to their prior request for bank records, as well as to provide an explanation for his failure to cooperate, within 10 days. Postal records confirm delivery of the certified letter. The respondent provided copies of the requested bank statements by letter dated April 18, 2011.

By letter dated April 22, 2011, sent by first class and certified mail/return receipt requested, the Grievance Committee asked the respondent to provide additional bank and bookkeeping records for his escrow account within 20 days. On or about May 12, 2011, the respondent acknowledged receipt of the Grievance Committee's letter and requested an extension of time to respond. The respondent's time to comply was extended until June 6, 2011, by letter from the Grievance Committee dated May 17, 2011. Thereafter, the respondent notified the Grievance Committee, by letter dated June 6, 2011, that he was meeting with counsel and required a further extension of time to answer. By letter dated June 27, 2011, sent via first class and certified mail/return receipt requested, the Grievance Committee asked the respondent to provide the name and contact information for his counsel, within 10 days. On or about July 10, 2011, the respondent provided that information.

In a letter to the respondent's counsel dated July 12, 2011, the Grievance Committee reiterated its request for the additional bank and bookkeeping records related to the respondent's escrow account within 10 days. On or about August 1, 2011, the respondent's counsel requested additional time to respond. At or about that time, the Grievance Committee received an additional complaint from George S. Susko. Although the respondent indicated to the Grievance Committee that his counsel was only representing him relative to the Kershnar complaint, he advised that his counsel was aware of the complaint from Mr. Susko. Thereafter, by letter dated August 2, 2011, the respondent's counsel was notified that his time to respond was extended until August 19, 2011.

On or about September 7, 2011, the respondent's counsel requested, via telephone, additional time within which to respond. Counsel was notified, via letter dated September 8, 2011, that his time ro respond to the Kershnar matter, as well as any other matter the respondent might have before the Grievance Committee, was extended until October 12, 2011. However, no records were received by October 12, 2011, as requested.

On January 18, 2012, judicial subpoenas dated January 10, 2012, were personally served on the respondent directing him to provide, inter alia, all bank and bookkeeping records for his escrow account for the period January 1, 2010, through January 30, 2011, by January 30, 2012, and to appear at the Grievance Committee's offices for an examination under oath (hereinafter EUO) on February 6, 2012. On or about January 31, 2012, the respondent requested, and received, an adjournment of his EUO until February 7, 2012. At that time, the respondent advised the Grievance Committee that he was not represented by counsel. By letter dated February 1, 2012, the Grievance Committee confirmed the adjournment of the respondent's EUO, and reminded him, inter alia, that the bank and bookkeeping records required to be produced pursuant to subpoena were past due.

On or about February 6, 2012, the respondent produced 72 pages of bank and bookkeeping records, via facsimile. Those records did not include copies of cash withdrawal slips and/or copies of cancelled checks other than bank checks. The respondent also failed to provide a ledger or similar record. At his EUO on February 7, 2012, the respondent was asked to explain his failure to provide complete records pursuant to the subpoena served upon him, whereupon he acknowledged that he failed to maintain a ledger. At that time, he promised to provide the Grievance Committee with a reconciliation of his escrow account by February 17, 2012.

By letter dated March 7, 2012, sent by first class mail, the Grievance Committee reminded the respondent of his commitment to provide a reconciliation of his escrow account by February 17, 2012. The Grievance Committee requested production of the reconciliation, as well as other information, by March 22, 2012. Although the March 7, 2012 letter was not returned, the respondent failed to submit the required reconciliation and/or the additional information requested. On or about March 28, 2012, the Grievance Committee sent the respondent a follow-up letter by first class and certified mail/return receipt requested, enclosing the prior letter and directing him to respond within 10 days. Although postal records reflect that the letter was delivered, the respondent failed to answer. By letter dated April 16, 2012, the Grievance Committee sent the respondent a further letter by first class and certified mail/return receipt requested. Although the letters were sent to the same address as prior correspondence, and the first class letter was not returned, the letter sent by certified mail/return receipt requested was returned "not deliverable as addressed." The respondent failed to answer. To date, the respondent has failed to provide the Grievance Committee with a reconciliation of his escrow account, as agreed upon at his EUO on February 7, 2012.

Examination of the respondent's bank records showed that between on or about February 16, 2010, when the respondent received and deposited in his escrow account the settlement proceeds which were subject to the Kershnar lien, and December 15, 2010, when the respondent issued check number 1236 to pay Kershnar's lien, the balance on deposit in the respondent's escrow account fell below $2,500 on 24 days, as follows:

Date Account Balance

02/19/10 through 2/21/10 $ 851.58

11/08/10 through 11/11/10 $1,632.88

11/12/10 through 11/15/10 $1,032.88

11/16/10 through 11/17/10 $ 532.88

11/18/10 $ 285.88

11/29/10 $2,068.02

11/30/10 $1,568.02

12/02/10 $ 568.02

12/03/10 through 12/05/10 $ 393.02

12/07/10 $2,293.02

12/08/10 through 12/09/10 $1,593.02

12/10/10 $ 343.02

The Susko Complaint

On July 6, 2011, the Grievance Committee received a complaint from George Susko alleging that the respondent had failed to maintain contact with Susko regarding his personal injury action since January 2009, despite Susko's efforts to reach him. An e-Courts search revealed that the matter had been dismissed on July 31, 2009.

By letter dated July 25, 2011, the Grievance Committee provided the respondent with a copy of Susko's complaint and requested his written answer within 10 days. Although the letter was not returned, no answer was received. On or about August 12, 2011, the Grievance Committee sent a follow-up letter to the respondent by first class and certified mail/return receipt requested, advising him of the consequences of failing to cooperate and directing him to submit a written answer to the Susko complaint within 10 days. Although postal records reflect delivery of the certified letter, and the first class letter was not returned, no answer was received. By letter dated September 8, 2011, the respondent was notified that his time to respond to all matters pending before the Grievance Committee, was extended until October 12, 2011. No answer to the Susko complaint was received.

On January 18, 2012, judicial subpoenas dated January 10, 2012, were personally served upon the respondent directing him to provide, inter alia, his entire file regarding the Susko matter and directing him to appear at the Grievance Committee's offices for an EUO on February 6, 2012. On or about January 31, 2012, the respondent telephoned the Grievance Committee's offices and requested an adjournment of his EUO until February 7, 2012. By letter dated February 1, 2012, the Grievance Committee confirmed the respondent's request to adjourn his EUO and requested, inter alia, a written answer to the Susko complaint. The respondent failed to submit a written answer.

At the EUO held at the Grievance Committee's offices on February 7, 2012, the respondent agreed to submit a written answer to the Susko complaint by February 17, 2011. By first class letter dated March 7, 2012, the Grievance Committee reminded the respondent of his promise to provide a written answer to the Susko complaint. Although he was given until March 22, 2012, to respond the respondent failed to submit an answer. On or about March 28, 2012, the Grievance Committee sent the respondent a follow-up letter by first class and certified mail/return receipt requested, directing him to submit a written answer to the Susko complaint within 10 days. Although postal records reflect that the certified letter was delivered, and the first class letter was not returned, the respondent failed to submit an answer. By letter dated April 16, 2012, sent via first class and certified mail/return receipt requested, the respondent was directed to submit an answer within 10 days. Although the letters were sent to the same address as prior correspondence, and the first class letter was not returned, the letter sent by certified mail/return receipt requested was returned "not deliverable as addressed." The respondent failed to answer.

Additional Uncontroverted Evidence

On or about January 11, 2010, the respondent deposited a bank check in the amount of $152,500 into his escrow account, representing the proceeds of a personal injury matter he settled. Between on or about January 11, 2010, and January 19, 2010, the respondent disbursed $67,250 from the proceeds, leaving a balance of $85,250, which he was required to maintain and preserve on the client's behalf. However, as of January 20, 2010, the balance in the respondent's escrow account was only $3,245.58. At his EUO on February 7, 2012, the respondent did not dispute that the settlement funds were not maintained in escrow, as required. In addition, the respondent admitted making 125 cash withdrawals, totaling approximately $150,000, from his escrow account between January 2010 and January 2011. The respondent also admittedly issued checks from his escrow account to pay for personal and office-related expenses during that period

Further, an examination of the respondent's bank records revealed that the escrow account fell below zero on two occasions: January 26, 2010, -$3,234.42 and February 12, 2010, -$1,734.42. Moreover, on four occasions, checks issued from the respondent's escrow account were dishonored, as follows: January 13, 2010, check no. 1099, $64,500; January 27, 2010, check no. 1110, $5,800; February 9, 2010, check no. 1122, $4,000; February 16, 2010, check no. 1111, $2,000.

In opposition to the motion, the respondent avers that he experienced many personal problems that "clearly affected [him] in many ways." He has "no doubt" that his ability to pay attention to "administrative details" was compromised. However, he never "intentionally" caused harm to a client such that an interim suspension and/or a disciplinary proceeding is warranted. Rather, the respondent asserts that "somewhere along the way, someone took advantage of [his] situation and either failed to wire funds [his escrow] that should have been wired or bounced a check[,] or a deposit that should have been credited to account was actually deposited to another account at the banking institution." The respondent provides no documentary evidence to support his contentions.

Under the totality of the circumstances, the motion is granted, the respondent is immediately suspended from the practice of law, pursuant to 22 NYCRR 691.4(l)(1)(i), (ii), and (iii), pending further order of this Court, the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against him, and the matter is referred to a Special Referee to hear and report.

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

ENTER:

Aprilanne Agostino

Clerk of the Court