DISCIPLINARY proceeding instituted by the Grievance Committee for the Tenth 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 June 12, 1991. By decision and order on application of this Court dated June 4, 2008, the Court authorized the Grievance Committee to institute and prosecute a disciplinary proceeding against the respondent and the issues raised were referred to the Honorable Geoffrey J. O'Connell, 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 STEVEN W. FISHER, JJ.
The Grievance Committee for the Tenth Judicial District (hereinafter the Grievance Committee) served the respondent with a petition dated February 29, 2008, containing five charges of professional misconduct. After a pretrial conference and a hearing, the Special Referee sustained all five charges. The Grievance Committee now moves to confirm the Special Referee's report and to impose such discipline upon the respondent as the Court may deem just and proper. The respondent's counsel has submitted an affirmation in reply in which he does not oppose the Grievance Committee's motion, but asks the Court to consider the mitigating factors proffered by the respondent and to exercise mercy in its administration of justice.
Charge one alleges that the respondent violated his fiduciary obligations by failing to maintain and preserve funds belonging to another person which were entrusted to him, in violation of Code of Professional Responsibility DR 9-102(a) (22 NYCRR 1200.46).
The respondent represented Nigel Lewis and Verleen Lewis, sellers of real property in Newburgh, in or about June 2005. On or about June 1, 2005, the respondent was entrusted as fiduciary with the sum of $19,000 from the purchaser by check made payable to him as attorney. This sum was to have been held by the respondent in escrow until proper disbursement at the closing on July 15, 2005. The respondent deposited the Lewis down payment into his attorney trust account on June 16, 2005.
The balance in the respondent's attorney trust account after that deposit was $19,049.50. The respondent failed to preserve the Lewis down payment between June 16, 2005, and July 15, 2005, as evidenced by the following balances in his attorney trust account of $18,299.50 on July 7, 2005, and $16,299.50 on July 13, 2005.
Charge two alleges that the respondent misappropriated funds belonging to another person and entrusted to him, by withdrawing funds from his attorney trust account for his personal use, in violation of Code of Professional Responsibility DR 9-102(a) (22 NYCRR 1200.46).
On July 7, 2005, the respondent issued a check from his attorney trust account payable to "Stafford Byers" in the amount of $750. That check was posted to the account on July 7, 2005. The respondent issued the aforesaid check for his personal use unrelated to any client matter. The funds were drawn against money being held by the respondent in escrow, as fiduciary, in relation to the Lewis transaction.
Charge three alleges that the respondent commingled personal funds with funds belonging to another person, by depositing personal funds into his attorney trust account, in violation of Code of Professional Responsibility DR 9-102(a) (22 NYCRR 1200.46).
On or about July 8, 2005, the respondent received legal fees of $1,300 from his client Ivylyn D. Davis-Bell. He deposited those fees into his attorney trust account.
On or about July 13, 2005, the respondent received legal fees of $250 from another client, Geraldine Barrows. He deposited those ...