A Brooklyn appellate panel has suspended a Putnam County attorney for a year, faulting him for not safeguarding nearly $340,000 that his now-disbarred wife admitted to stealing.
Four years after Patterson attorney Jane Posner pleaded guilty to second-degree grand larceny, the Appellate Division, Second Department, disciplined Martin Posner on April 16 for breaches of fiduciary duty—even though Posner said he was not involved in the firm’s dealings when the theft took place.
He sought, at most, a public censure.
The panel said it was “mindful” Posner was “no longer an active participant in the law firm at the time of the underlying events, and was not directly involved in the subject defalcations. However, the respondent remained a named partner of the law firm, and an authorized signatory for the law firm’s mortgage closing account, with attendant fiduciary obligations.”
Presiding Justice Randall Eng (See Profile) and Justices William Mastro (See Profile), Reinaldo Rivera (See Profile), Peter Skelos (See Profile) and L. Priscilla Hall (See Profile) decided Matter of Posner, 2012-04204. The decision in on page 6 of the print edition, and the suspension is effective May 16.
Posner, a part-time solo practitioner, can apply for reinstatement on Nov. 17.
Jane Posner, who married Martin in 1970, joined her husband’s firm in the 1980s as a legal assistant while she was a student at Pace Law School, where Martin had graduated. After passing the bar, she became a junior and then a full partner in a real estate firm that became Posner Posner & Associates.
In June 2007, Martin Posner said he left the firm to become a financial advisor for Smith Barney.
According to a 2012 testimony before the Ninth Judicial District’s Grievance Committee, Posner said he asked his wife to let him remove his name from the firm’s masthead and accounts.
She “insisted” his name stay to make “everybody else think we had a small law firm, and she was still trying to build a practice and thought it would be detrimental. And I was stupid. I should’ve insisted that I do that.”
As he concluded his practice, Posner received several paychecks for answering his wife’s legal questions but had stopped showing up at his former office.
The criminal case against Jane Posner arose from a $339,719 check in September 2008 for a real estate closing she attended on behalf of a New Jersey firm. After depositing the money in her escrow account, Jane Posner sent the check to the New Jersey firm but then stopped payment.
Under grievance committee questioning, Posner said he learned his wife had misappropriated funds before September 2008 but could not recall when, saying he had “some idea that there was a problem” when she would cry.
Asked if he moved to become more involved in account maintenance, Posner said he did not.
“I was not working there. I was working full time for Smith Barney, I was trying to build a new practice, and I didn’t,” he said.
Jane Posner, 64, resigned from the bar about a month after issuing the September 2008 check, acknowledging she could not successfully fight a grievance committee probe. The Second Department disbarred her in April 2009.
She pleaded guilty in Putnam County Court in January 2010 and was offered five years probation if she made full restitution, paying the first $50,000 before sentencing. But she was jailed after repaying only $4,000 by the sentencing date, and received a 5-to-15-year prison sentence instead.
The Second Department ordered her re-sentencing in November 2012, saying the lower court did not sufficiently examine if her inability to make the down payment was willful (NYLJ, Nov. 29, 2012).
She was resentenced in March 2013 to five years probation, plus monthly $1,500 restitution payments, according to a Putnam County District Attorney spokeswoman Michelle Carter.
Martin Posner was never charged in connection to his wife’s actions, Carter confirmed.
Posner told the grievance committee was “devastated” by his wife’s conviction. He spoke of seeing his wife upstate every weekend.
“It was very difficult financially, but I did it anyway because I had to see her and I knew it made her happy,” he said.
Martin Posner’s attorney, Richard Grayson of White Plains, argued before the grievance committee’s special referee that his client never possessed the escrow funds or knew of the subject disbursements.
Moreover, he argued Posner never held himself out as a partner at the firm after leaving, and as a result, could not have been expected to supervise his wife. But Special Referee Alfred Weiner sustained all six professional misconduct charges.
The grievance committee moved to confirm Weiner’s report, saying Martin Posner made the “conscious choice to remain a partner with the firm and not change its name … based upon the consideration that he [might] return to the firm on a more full-time basis and that the firm should maintain a larger appearance of its size to potential clients.”
The committee added he was “uniquely positioned as a partner and signatory to assume greater control of the escrow account” but “took no steps whatsoever to do so, even after Jane Posner confessed to him that she had misappropriated client funds from such.”
In affirming the suspension, the Second Department noted Posner made “no effort” to pay back clients who had incurred “significant losses.” It added he had previously received three letters of caution.
Matthew Lee-Renert appeared for the grievance committee.
Grayson declined to comment on the ruling and said Martin Posner would not be available to comment.
During his 2012 testimony, Martin Posner said he was “very upset about this whole proceeding. I’ve been a good attorney, I think an honest and ethical attorney for many years. I take care of my clients, I care about them quite a bit. I think the only thing I did wrong was not taking my name off the account.”
Grayson said his client would seek reinstatement.