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Departing from both an attorney grievance committee and a referee's recommendations for a punishment of suspension, a state appeals court has chosen to instead publicly censure a veteran Manhattan lawyer found guilty of 18 attorney misconduct charges linked to him converting or misappropriating client escrow funds.

In censuring attorney Richard S. Peskin and not doing more—based partly on health issues he had been experiencing—an Appellate Division, First Department panel turned back the attorney grievance committee's recommendation of a two-year suspension for him and a court-appointed referee's recommendation of a six-month suspension.

“We have consistently held that public censure is an appropriate sanction for escrow violations such as commingling and nonvenal conversion where the misconduct is aberrational, and the attorney has shown remorse and cooperation,” the unanimous panel wrote in explaining the censure punishment.

The panel also wrote that Peskin, a 64-year-old solo practitioner with an office on Madison Avenue, has some 40 years of practice experience and had never before encountered an allegation of misconduct.

In addition, he had responded to the charges, in part, by pointing out that at the time of his misconduct several years ago, he was being cared for by both a psychiatrist and neurologist while being medicated for stress, anxiety, ADD and depression stemming from a physical condition known as “essential tremor,” wrote the panel in its opinion issued Tuesday.

Still, the panel's opinion also laid out that Peskin had been charged, and found guilty of, 18 misconduct counts that included the misuse of his IOLA attorney trust account; entering into client business transactions without written agreements; lying to the First Department grievance committee; failing to provide a retainer agreement in a matter; and not maintaining required bookkeeping records; among other charges.

Moreover, a referee appointed by the Appellate Division, First Department in March 2018, who then held a hearing and issued a report on Peskin's case, found that the record “demonstrate[d] the folly of a busy solo practitioner attempting to manage a sizeable general practice without support.”

The same referee, however—who was not named by the panel—also reportedly wrote that Peskin had “suffered not only the common malady of poor memory but a medical history of anxiety.”

Moreover, the referee noted, according to the panel, that the record “does not show that anyone save [Peskin] has suffered [from his misuse of client escrow funds]—by dint of his considerable expenditure of his time, energy and the stress involved in defending this proceeding [and] these charges.”

On Wednesday and Thursday, Peskin did not provide comment on his attorney discipline matter and the First Department's decision, despite requests made by the Law Journal.

The panel of Justices David Friedman, Dianne Renwick, Angela Mazzarelli, Cynthia Kern and Anil Singh explained that the matter involving Peskin first came to the grievance committee's attention when the Lawyers' Fund for Client Protection told the committee that a check from Peskin's IOLA account had bounced in 2015.

The panel did not say how much the check was for.

The committee started investigating Peskin and later charged him with the 18 misconduct counts, including intentionally converting and/or misappropriating client funds from his IOLA account in violation of rule 8.4(c) of the state's Rules of Professional Conduct.

In turn, Peskin denied the charges, the panel wrote, and raised affirmative defenses and factors in mitigation. They included that any alleged misconduct was negligent not intentional, that no identified client was harmed or lost money, and that the committee couldn't say which clients' funds were allegedly converted, the panel said.

Peskin also later filed a motion to dismiss the charges or, alternatively, to dismiss certain charges. Then in 2018, the First Department appointed the referee via an unpublished order.

The referee sustained the 18 charges against Peskin and recommended a suspension barring him from practicing law for six months.

Subsequently, the grievance committee asked the panel to confirm the referee's liability findings. It also told the appeals court that “while nonvenal conversion cases can range from public censure to a four-year suspension, in the case at bar, a two-year suspension would be appropriate,” the decision noted.

In assessing Peskin's matter, the panel sustained the referee's report finding him guilty of the misconduct charges, but parted ways—from both the referee and committee—on punishment.

“Here, [Peskin] is a 64 year-old busy solo practitioner attempting to manage a sizeable general practice without support,” they wrote.

The justices further pointed out that “in his 40-plus years of practice, he had never had a complaint filed against him and he had never bounced a check until the one that led to this proceeding.”

Moreover, he “admitted to inadvertent mistakes, primarily sloppiness; that he immediately deposited money into his account to prevent any further loss,” and regarding his physical condition, wrote the justices, “his lack of focus and concentration might have caused the alleged misconduct.”

Peskin also voluntary completed CLE sessions on the proper IOLA account maintenance, had a lack of intent and venality, and expressed sincere remorse, the justices said.