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 March 15, 1978. By decision and order on application dated December 28, 2007, the Grievance Committee was authorized to institute and prosecute a disciplinary proceeding against the respondent, and the issues raised were referred to the Honorable Joseph A. Esquirol, Jr., 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, STEVEN W. FISHER and HOWARD MILLER, JJ.
The Grievance Committee for the Tenth Judicial District (hereinafter the Grievance Committee) served the respondent with a petition dated August 23, 2007, containing nine charges of professional misconduct. After a preliminary conference on April 8, 2008, and further hearings on September 17 and 25, 2008, the Special Referee sustained charges one through six but found that charges seven through nine had not been established by a fair preponderance of the credible evidence. The Grievance Committee now moves to confirm the Special Referee's report to the extent that it sustains charges one through six, to disaffirm to the extent that it does not sustain charges seven through nine, and to impose such discipline as the Court deems just and proper. The respondent cross-moves to confirm the Special Referee's report with respect to charges seven, eight, and nine and to disaffirm with respect to charges two, four, five, and six.
Charge one alleges that the respondent allowed his professional judgment on behalf of his clients to be affected by his own financial, business, property, or personal interests in that during the course of his representation of two clients (hereinafter the clients) in a child neglect matter pending in Family Court, he had the clients convey title to their home to him in order to prevent a foreclosure sale of the property and, thereafter, sought to evict them while continuing to represent them in the Family Court matter, in violation of Code of Professional Responsibility DR 5-101(a) (22 NYCRR 1200.20).
On or about February 21, 2001, the clients' lender, Homecomings Financial Network, commenced a foreclosure action against them with respect to their residence. That action resulted in a judgment of foreclosure, in favor of the lender, dated March 6, 2002. The clients entered into a forbearance agreement with the lender on or about May 24, 2002, by which the lender agreed to postpone the foreclosure sale provided the clients made timely and consistent payments pursuant to a plan.
On or about August 30, 2002, Child Protective Services served a summons and petition upon the clients alleging neglect and endangerment of their 11-year old son and directing their appearance in Family Court, Nassau County, on September 10, 2002. The neglect proceeding was adjourned to September 23, 2002, and the clients retained the respondent to represent them.
The respondent requested and received from the lender payoff quotes, the latest of which stated that the amount necessary to satisfy the clients' mortgage through October 10, 2002, was $244,741.39. The neglect proceeding was adjourned to November 12, 2002, and the foreclosure sale was rescheduled for November 6, 2002.
On the evening of October 10, 2002, the respondent had the clients execute and deliver to him a deed conveying their premises to him. They were not represented by independent counsel with respect to that deed. The deed bears the signature and notary stamp of the respondent's law partner, Kevin Carsey, purportedly evidencing that it was signed in his presence on October 10, 2002. Kevin Carsey was not present at the time.
On or about October 11, 2002, the respondent remitted funds totaling $244,690.73 to the lender in satisfaction of the clients' mortgage. On or about October 16, 2002, the respondent caused the deed, with the purported signature of Kevin Carsey, to be recorded in the Nassau County Clerk's office.
On or about October 23, 2002, the respondent prepared and mailed to the clients a lease, establishing a landlord/tenant relationship between himself and them. The proposed lease term was one year, from November 1, 2002, to October 31, 2003, for a monthly rental of $1,800. The lease contained no provisions for the parties' respective rights and obligations with respect to the equity in the premises. Although the clients did not sign the lease, they continued to reside in the premises.
Between October 23, 2002, and November 7, 2002, the respondent issued numerous personal checks totaling $14,500 to pay tax arrears or to redeem tax liens against the property. The respondent continued to pay taxes when due and communicated with the lender and its attorney to obtain a satisfaction ...