By Charisma L. Miller, Esq.
Brooklyn Daily Eagle
The Appellate Division, Second Department has suspended an upstate lawyer who wrongfully kept his name on the law business he shared with his wife even after leaving the practice.
Martin Posner and his wife Jane owned the real estate law firm Posner Posner & Associates, P.C. The Posners were responsible for safeguarding client mortgage funds by placing monies in authorized escrow accounts. In September 2008, $421,262.16 was deposited into one such account for a client’s real estate transaction. Jane was supposed to issue a check from the escrow account in the amount of $339,719.79 to pay off expenses related to a real estate transaction.
Jane drew the check against the account, but stopped payment on the check. The monies never reached their intended party and were never returned to the escrow account. Eventually a Grievance Committee began an investigation into Jane and the firm’s account transactions. She informed her husband and was subsequently convicted of grand larceny for the misappropriation of client funds.
Martin Posner was also brought up on disciplinary charges for breaching his fiduciary duty to the Posner firm’s clients. He argued that he was “no longer an active participant in the law firm,” at the time of his wife’s misdeeds. As such, the argument continued, he could not be held to have a duty to the firm’s clients.
Martin did leave the firm in 2007 to work for the financial services firm Smith Barney. Although he was no longer a member of the firm, he failed to remove his name from the company masthead. As a named partner, despite the fact that he was no longer with the firm, Martin owed the same level of fiduciary duty to the firm’s client as his wife.
According to the Grievance Committee report, which was relied upon by the Brooklyn Appellate Division, Martin made the "conscious choice to remain a partner with the firm and not change its name…[and] was uniquely positioned as a partner and signatory to assume greater control of the escrow account." Instead of fixing his wife’s error, he "took no steps whatsoever to do so, even after Jane Posner confessed to him that she had misappropriated client funds," the Committee report further stated.
“Under the totality of the circumstances,” the Brooklyn Appellate Division ruled, Martin Posner’s actions warranted a one-year suspension from the practice of law. Martin requested censure.
Jane did not fare as well. Following her conviction, she was disbarred and sentenced to five years probation on the condition that she pay full restitution of the first $50,000 prior to her sentencing. Jane failed to satisfy the initial $50,000 and was placed in jail and given a 5-to-15-year prison term in 2012. In 2013, Jane was resentenced to five years probation and monthly restitution payments.
Martin was never criminally charged in connection with his wife’s misdeeds.