DISCIPLINARY proceeding instituted by the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on May 17, 1995, under the name Edwin Eustace Drakes. By decision and order on application of this Court dated November 27, 2006, the Grievance Committee was authorized to institute and prosecute a disciplinary proceeding against the respondent and the issues raised were referred to the Honorable Vincent Pizzuto, as Special Referee to hear and report. By further decision and order on application of this Court dated December 5, 2006, the Grievance Committee was authorized to supplement the previously-authorized petition and referred the issues raised therein to the Honorable Vincent Pizzuto along with the charges previously referred to him. By opinion and order of this Court dated March 1, 2004, the respondent was suspended from the practice of law for a period of two years, commencing April 1, 2004, as a result of a previously-authorized disciplinary proceeding (see Matter of Drakes, 5 AD3d 33).
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
A. GAIL PRUDENTI, P.J., REINALDO E. RIVERA, ROBERT A. SPOLZINO, PETER B. SKELOS and HOWARD MILLER, JJ.
The Grievance Committee served the respondent with a petition dated December 19, 2006, containing eight charges of professional misconduct. After a preliminary conference on May 3, 2007, and hearings conducted on May 16, 2007, June 18, 2007, and December 27, 2007, Special Referee Vincent Pizzuto submitted a report dated April 9, 2008, in which he sustained all of the charges except for Charge Three. The Grievance Committee moves to confirm the Special Referee's report and to discipline the respondent as the Court deems appropriate under the circumstances. The respondent's counsel has submitted an affirmation in opposition in which he contends that Charge One, in part, and Charges Five, Seven, and Eight should not have been sustained. He maintains that disbarrment is not warranted, that the respondent has indicated that he is now conducting himself correctly, and that the four years for which he has already been suspended constitutes sufficient punishment.
Charge One alleges that the respondent improperly converted funds entrusted to him as a fiduciary, in violation of Code of Professional Responsibility DR 9-102(a) (22 NYCRR 1200.46[a]) , and Code of Professional Responsibility DR 1-102(a)(4) and (7) (22 NYCRR 1200.3[a], ) .
The respondent was retained by Blanche Bennett in or about January 2004 to represent her in the sale of a house she owned in Brooklyn. At the conclusion of the closing on January 29, 2004, the respondent was entrusted with a check for $25,647.47 as Bennett's sale proceeds. On or about January 30, 2004, the respondent deposited that check into his attorney escrow account at JPMorgan Chase Bank. Although he failed to disburse those funds to Bennett, the balance in the respondent's escrow account fell to $6,582.17 by February 22, 2004.
Charge Two alleges that the respondent, as a suspended attorney, engaged in the unauthorized practice of law by representing a client, Edward Phillips, in violation of Code of Professional Responsibility DR 1-102(a)(4), (5), and (7) (22 NYCRR 1200.3[a], , ) .
By opinion and order of this court dated March 1, 2004, the respondent was suspended from the practice of law for a period of two years, effective April 1, 2004, and was directed to desist and refrain from the practice of law in any form. He was personally served with that opinion and order on or about March 5, 2004.
In or about April 2004, the respondent agreed to represent Phillips in a refinancing transaction for a house he owned in New York County. The respondent failed to inform Phillips of his suspension.
On or about April 7, 2004, the respondent prepared a document in relation to the refinancing whereby Phillips agreed that all proceeds of the loan would be held by the respondent and disbursed by him exclusively. The respondent attended the April 7, 2004, closing and represented the legal interests of Phillips. He received a check in the amount of $396,560.46 as Phillips' proceeds from the refinancing and deposited that check into his attorney escrow account at JPMorgan Chase Bank on or about April 16, 2004.
Charge Four alleges that the respondent, as a suspended attorney, engaged in the unauthorized practice of law by representing client Dorothy Tyler Smith during the period of his suspension, in violation of Code of Professional Responsibility DR 1-102(a)(4), (5), and (7) (22 NYCRR 1200.3[a], , ) .
By letter to Smith dated January 5, 2005, the respondent agreed to complete an uncontested divorce he had been handling for her since 2003. The respondent ...