Appellate Division Second Department Motion List Released on: March 5, 2021
By Mastro, A.P.J., Rivera, Dillon, Chambers, Austin, JJ. IN THE MATTER OF RALEIGH DOUGLAS HERBERT, AN ATTORNEY AND COUNSELOR-AT-LAW. GRIEVANCE COMMITTEE FOR THE SECOND, ELEVENTH, AND THIRTEENTH JUDICIAL DISTRICTS, pet; RALEIGH DOUGLAS HERBERT, res — Motion by the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts to immediately suspend the respondent from the practice of law pursuant to 22 NYCRR 1240.9(a)(5) upon a finding that he is guilty of professional misconduct immediately threatening the public interest, and to refer the issues raised to a Special Referee, to hear and report. Separate motion by the respondent, inter alia, pursuant to 22 NYCRR 1240.11(a) for diversion to a monitoring program approved by the Court and to stay the above-entitled disciplinary proceeding pending completion of the diversion program. The Grievance Committee served the respondent with a notice of petition and a verified petition, both dated September 18, 2020, and the respondent filed a verified answer dated October 20, 2020. Subsequently, the Grievance Committee filed a statement of disputed and undisputed facts dated November 16, 2020, which respondent’s counsel requested be deemed filed jointly, by response also dated November 16, 2020. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the First Judicial Department on April 10, 1995. Upon the papers filed in support of the motions and the papers filed in opposition thereto, it is ORDERED that the respondent’s motion is denied; and it is further, ORDERED that the motion by the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts is granted; and it is further, ORDERED that pursuant to 22 NYCRR 1240.9(a)(5), the respondent, Raleigh Douglas Herbert, 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, Raleigh Douglas Herbert, shall promptly comply with the rules governing the conduct of disbarred or suspended attorneys (see 22 NYCRR 1240.15); 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, Raleigh Douglas Herbert, 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 if the respondent, Raleigh Douglas Herbert, 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 1240.15(f); and it is further, ORDERED that the issues raised are referred to David I. Ferber, c/o Ferber Chan Essner Coller, LLP, One Grand Central Place, 60 East 42nd Street, Suite 4700, New York, NY 10165, to hear and report, with the hearing to be completed within 60 days of the date of this decision and order, or as soon thereafter as practicable, and the report, which contains his findings on the issues and charges, to be submitted within 60 days after the conclusion of the hearing or the submission of post-hearing memoranda. Discussion We find that the respondent, Raleigh Douglas Herbert, is guilty of professional misconduct immediately threatening the public interest based on uncontroverted evidence that he misappropriated client funds entrusted to him. We also find that the evidence does not support the respondent’s motion, inter alia, pursuant to 22 NYCRR 1240.11(a) for diversion to a monitoring program approved by the Court. Grand-Pierre, Beach, and McClean Matters Between October 29 and November 15, 2018, the respondent deposited settlement proceeds on behalf three clients, totaling $71,000, into his attorney escrow account at Signature Bank, titled “R. Douglas Herbert Escrow Account,” account ending in 4098 (hereinafter the escrow account), as follows: on October 29, 2018, the sum of $19,000 on behalf of his client, Hermila Grand-Pierre; on October 29, 2018, the sum of $12,000 on behalf of his client, Mark Beach; and on November 15, 2018, the sum of $40,000 on behalf of his client, Jerimiah McClean. Following the McClean deposit, the escrow account balance was only $44,290.41, even though no disbursements had been made in connection with either the Grand-Pierre, Beach or McClean matters. The record reflects that between October 30 and December 10, 2018, the respondent issued 30 checks from the escrow account payable to himself totaling $60,400, and 2 checks, totaling $10,238.50, on behalf of clients who did not have correlating funds on deposit in the escrow account. On December 10, 2018, the escrow account balance was only $651.91, far below what the respondent was required to maintain for the Grand-Pierre, Beach, and McClean matters. Ruiz, Singleton, and Beauliere Matters Between December 13, 2018, and January 23, 2019, the respondent deposited settlement funds totaling $96,000, into the escrow account on behalf of three client matters, as follows: on December 13, 2018, the sum of $50,000 on behalf of his client Concepcion Ruiz; on January 3, 2019, the sum of $25,000 on behalf of his client, Robert Singleton; and on January 3, 2019, the sum of $21,000 on behalf of his client, Jeanberg Beauliere. Following the Singleton and Beauliere deposits, the escrow account balance was only $58,826.91, far below what the respondent was required to maintain for the Ruiz, Singleton, and Beauliere matters. The record reflects that between December 13, 2018, and January 23, 2019, respondent issued 22 checks from the escrow account payable to himself totaling $71,442.37; 5 checks to clients who did not have correlating funds on deposit in the escrow account, totaling $13,325.20; and 1 check in the amount of $11,666 on behalf of an unrelated matter where correlating funds were not on deposit in the escrow account. On January 23, 2019, the escrow account balance was only $218.34, far below what he was required to maintain for the Ruiz, Singleton, and Beauliere matters. Taylor and Gillespie Matters Between February 4 and March 14, 2019, the respondent deposited settlement funds totaling $54,500 into the escrow account received in connection with two client matters, as follows: on February 4, 2019, the sum of 37,500; on February 26, 2019, the sum of $12,500, on behalf of his client Delano Taylor; and on March 8, 2019, the sum of $4,500 on behalf of his client Kentah Gillespie. The record reflects that between February 4 and March 14, 2019, the respondent issued over 20 checks from the escrow account payable to himself, totaling over $50,000, and 1 check to his client, Dowill Garcia ($4,308.70), who at the time had no funds on deposit in the escrow account. On March 14, 2019, the escrow balance was only $59.64, far below what the respondent was required to maintain for the Taylor and Gillespie matters. Charles, Isaac-Calixte, Estrada, Ortiz, Fiallos, Cochran and Jones Matters Between April 26 and August 23, 2019, the respondent made, among others, seven deposits into the escrow account representing settlement proceeds on behalf of seven clients, as follows: on April 26, 2019, the sum of $25,000 on behalf of Jean Charles; on April 30, 2019, the sum of $1,250 on behalf of Sophia Isaac-Calixte; on May 6, 2019, the sum of $12,550 on behalf of Ricardo Estrada; on June 3, 2019, the sum of $20,000 on behalf of Marina Ortiz; on June 13, 2019, the sum of $45,000 on behalf of Anthony Fiallos; on July 16, 2019, the sum of $1,979.56 on behalf of Dashawn Cochran; and on August 1, 2019, the sum of $11,731.73 on behalf of Lashonda Jones. The record reflects that between April 26 and August 23, 2019, the respondent issued over 60 checks from his escrow account, over 50 of which were issued to himself, totaling over $100,000, and several of which, totaling over $10,000, were issued to clients who did not have funds on deposit in the escrow account. On August 23, 2019, the escrow balance was only $170.55, far below what the respondent was required to maintain on deposit for the above matters for the Charles, Isaac-Calixte, Estrada, Ortiz, Fiallos, Cochran, and Jones matters Conclusion The respondent opposes the motion for an interim suspension, arguing that he does not constitute an immediate threat to the public, and moves, inter alia, for diversion to a monitoring program approved by the Court and to stay the above-entitled disciplinary proceeding pending completion of the diversion program. We find that the Grievance Committee has sufficiently demonstrated that the respondent poses an immediate threat to the public interest based on his misappropriation of client funds. Based upon the foregoing, the Grievance Committee’s motion is granted, the respondent’s motion is denied, the respondent is immediately suspended from the practice of law, pursuant to 22 NYCRR 1240.9(a)(5), pending further order of this Court, and the matter is referred to a Special Referee, to hear and report. MASTRO, A.P.J., RIVERA, DILLON, CHAMBERS and AUSTIN, JJ., concur.
