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In re Delano (N.Y.App.Div. 02/26/2009)

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


February 26, 2009

IN THE MATTER OF ANDREW M. DELANO, AN ATTORNEY.
COMMITTEE ON PROFESSIONAL STANDARDS, PETITIONER;
v.
ANDREW M. DELANO, RESPONDENT. (ATTORNEY REGISTRATION NO. 2940542)

Per curiam.

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.

Calendar Date: December 8, 2008

Before: Mercure, J.P., Rose, Lahtinen, Malone Jr. and Stein, JJ.

MEMORANDUM AND ORDER

Respondent was admitted to practice by this Court in 1999 and maintains a law office in the City of Kingston, Ulster County.

Petitioner moves to confirm a Referee's report which sustained all charges and specifications brought against respondent. Respondent has not appeared on the instant motion.

We grant petitioner's motion, in part, and find respondent guilty of the following professional misconduct as charged in the petition of charges. Respondent improperly released funds held in escrow (see Code of Professional Responsibility DR 1-102 [a] [5] [22 NYCRR 1200.3 (a) (5)], failed to respond to communications from opposing counsel (see Code of Professional Responsibility DR 1-102 [a] [5] [22 NYCRR 1200.3 (a) (5)], failed to cooperate with petitioner in its investigation (see Code of Professional Responsibility DR 1-102 [a] [5] [22 NYCRR 1200.3 (a) (5)]), and failed to comply with this Court's rules (see Code of Professional Responsibility DR 1-102 [a] [5], [7] [22 NYCRR 1200.3 (a) (5), (7)]). However, we find that the record does not support a finding that respondent commingled or misappropriated client funds in violation of Code of Professional Responsibility DR 9-102 (a) (22 NYCRR 1200.46 [a]).

Having considered the factors and circumstances presented, we conclude that respondent should be suspended from practice for a period of six months. Further, in addition to demonstrating compliance with this Court's rule on reinstatement of attorneys (see 22 NYCRR 806.12), any reinstatement application by respondent shall also be supported by a medical report indicating his capacity to resume the practice of law.

Mercure, J.P., Rose, Lahtinen, Malone Jr. and Stein, JJ., concur.

ORDERED that respondent is found guilty of the professional misconduct set forth above; and it is further

ORDERED that petitioner's motion to confirm the Referee's report is granted in part and denied in part in accordance with the findings set forth herein; and it is further

ORDERED that respondent is suspended from the practice of law for a period of six months, effective 20 days from the date of this decision, and until further order of this Court; and it is further

ORDERED that, for the period of suspension, respondent is commanded to desist and refrain from the practice of law in any form, either as principal or as agent, clerk or employee of another; and respondent is hereby forbidden to appear as an attorney or counselor-at-law before any court, judge, justice, board, commission or other public authority, or to give to another an opinion as to the law or its application, or any advice in relation thereto; and it is further

ORDERED that respondent shall comply with the provisions of this Court's rules regulating the conduct of suspended attorneys (see 22 NYCRR 806.9).

20090226

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