DISCIPLINARY proceeding instituted by the Grievance Committee for the Ninth Judicial District. 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 26, 1999, under the name Charles James Diven. By decision and order on motion dated November 19, 2007, this Court, inter alia, denied that branch of the petitioner's motion which sought the respondent's immediate suspension and granted that branch of the motion which was for authorization to institute and prosecute a disciplinary proceeding against the respondent, referring the issues raised to Norman B. Lichtenstein, Esq., as Special Referee to hear and report.
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., WILLIAM F. MASTRO, REINALDO E. RIVERA, ROBERT A. SPOLZINO and PETER B. SKELOS, JJ.
The Grievance Committee for the Ninth Judicial District (hereinafter the Grievance Committee) served the respondent with a petition dated September 10, 2007, containing nine charges of professional misconduct. After a preliminary conference on January 11, 2008, and a hearing on April 11, 2008, the Special Referee sustained all nine charges. The Grievance Committee now moves to confirm in full the report of the Special Referee and to impose such discipline as the Court may deem just and appropriate. The respondent has cross-moved to confirm the Special Referee's report with respect to charges one, two, three, and eight, and to disaffirm with respect to charges four, five, six, seven, and nine, and to limit the discipline imposed to a public censure.
Charges one through seven emanate from a complaint by Sheila Freedman (hereinafter Mrs. Freedman). Charges eight and nine relate to the respondent's representation of Mr. and Mrs. Comis.
Charge one alleges that the respondent engaged in conduct adversely reflecting on his fitness to practice law by failing to properly identify his attorney escrow account, in violation of DR 9-102(b)(2) (22 NYCRR 1200.46[b]).
The respondent maintained an attorney trust account at Hudson Valley Bank entitled "Charles Diven, Jr., Esq." He failed to maintain that account in a proper manner in that it was not identified as an attorney special or attorney trust account. Neither the checks nor the deposit tickets bore the required title.
Charge two alleges that the respondent engaged in conduct adversely reflecting on his fitness to practice law by failing to safeguard funds entrusted to him in breach of his fiduciary duty, in violation of DR 9-102(a) (22 NYCRR 1200.46[a]).
The respondent prepared a separation agreement for Mrs. Freedman and her husband, Terry Freedman (hereinafter Mr. Freedman), executed on February 26, 2002. Pursuant to section four of that agreement, the respondent was to have held a portion of the sale proceeds from the sale of the marital residence in his escrow account to pay Mrs. Freedman's federal tax obligations. The respondent testified that he made an internal transfer of funds from Mrs. Freedman on or about March 8, 2002, and credited those funds to the benefit of another client, Mr. Adler. The funds were subsequently disbursed on behalf of Mr. Adler. The respondent failed to maintain any funds in his escrow account to cover Mrs. Freedman's federal tax obligations.
Charge three alleges that the respondent engaged in conduct adversely reflecting on his fitness to practice law by simultaneously representing parties with differing interests, in violation of DR 5-105(a) and (b) (22 NYCRR 1200.24[a][b]).
Based upon paragraph six of the separation agreement, the respondent was to represent both Mr. and Mrs. Freedman. He failed to protect Mrs. Freedman's interests and failed to pursue matters he was to have handled on her behalf, such as the divorce, a bankruptcy petition, and resolution of tax issues. The respondent also failed to safeguard the funds he was to be holding for payment of Mrs. Freedman's tax liabilities and allowed Mr. Freedman to use those funds to repay Mr. Adler.
Charge five alleges that the respondent engaged in conduct adversely reflecting on his fitness to practice law by representing a party against a former client in a substantially related ...