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In re D'Emic

Supreme Court of New York, Second Department

October 2, 2013

In the Matter of John J. D'Emic, admitted as John Joseph D'Emic, a suspended attorney. Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, petitioner;
v.
John J. D'Emic, respondent. (Attorney Registration No. 1093590)

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 October 22, 1975, under the name John Joseph D'Emic. By decision and order on motion of this Court dated April 22, 2010, the respondent was immediately suspended from the practice of law based on his conviction of a serious crime, the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts was authorized to institute and prosecute a disciplinary proceeding against him, and the issues raised were referred to the Honorable Stella Schindler, as Special Referee, to hear and report.

Diana Maxfield Kearse, Brooklyn, N.Y. (Myron C. Martynetz of counsel), for petitioner.

Meissner Kleinberg & Finkel, New York, N.Y. (Richard A. Finkel of counsel), for respondent.

RANDALL T. ENG, P.J., REINALDO E. RIVERA, PETER B. SKELOS, MARK C. DILLON, RUTH C. BALKIN, JJ.

OPINION & ORDER

PER CURIAM.

The Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts served the respondent with a petition dated May 3, 2010, which was later amended by a stipulation dated June 4, 2012. Following a prehearing conference on March 29, 2012, and a hearing on June 4, 2012, the Special Referee sustained all of the charges, as amended. The Grievance Committee now moves to confirm the report of the Special Referee and for the imposition of such discipline as the Court deems just and appropriate. The respondent cross-moves to disaffirm the report, in part. He agrees that the charges, as amended, should be sustained. However, he argues that the Special Referee erroneously concluded that he was convicted of a serious crime, and that he did not sufficiently show remorse or that he had the moral fiber required of an attorney. He asks that he be suspended from the practice of law for the time already served under the interim order of suspension.

Charge one, as amended, alleges that the respondent is guilty of professional misconduct, in that he was convicted of a serious crime in violation of rule 8.4(b) of the Rules of Professional Conduct (see 22 NYCRR 1200.0). On October 1, 2009, the respondent pleaded guilty in the Supreme Court, Queens County, to a violation of Judiciary Law § 491, a misdemeanor, which prohibits the sharing of compensation by attorneys with nonlawyers. He was sentenced to a fine of $10, 000, a 30-day period of community service, and a one-year conditional discharge.

Charge two, as amended, alleges that the respondent knowingly shared his attorney fees with an attorney whom he knew was disbarred, in violation of Code of Professional Responsibility DR 3-102(a) (see 22 NYCRR 1200.17[a]). During his plea allocution in the Supreme Court, Queens County, on October 1, 2009, the respondent admitted that during 2007 he was the named attorney for either the borrower or seller in more than a dozen real estate closings involving the law firm John Weber and Associates. Each of these real estate closings was referred to the respondent by Alan Morris, an employee of John Weber and Associates, whom the respondent knew was a disbarred attorney at the time of the referrals. The respondent entered into an agreement with Morris whereby Morris would handle all of the legal work prior to the closings, and the respondent would only be required to be present at the closings themselves. Pursuant to the agreement, all of the documentation for the closings, including the HUD-1 statements, would indicate that the respondent had received $1, 800 as an attorney's fee. Morris, as settlement agent, would then write a disbursement check payable to the respondent in the amount of $1, 800, and the respondent would thereafter provide Morris with a check for $850 from his IOLA account; in so doing, the respondent split a portion of his legal fee with Morris, a disbarred attorney.

Charge three, as amended, alleges that the respondent authorized the proceeds of the sale of real property owned by his client to be redistributed to third parties without authorization from his client, in violation of Code of Professional Responsibility DR 1-102(a)(4) (see 22 NYCRR 1200.3[a][4]). In an affidavit the respondent submitted to the Supreme Court, Queens County, as part of his plea allocution, the respondent admitted that on or about September 21, 2007, as attorney for a seller of real property, Eugene Thomas, the respondent prepared a letter authorizing the redistribution of more than $300, 000 of the proceeds of the sale to various construction companies. The respondent further admitted that he had falsely indicated in that letter that he had met with Thomas, and that Thomas had requested the redistribution of the proceeds. In fact, the respondent had never even met Thomas.

Charge four, as amended, alleges that the respondent made misrepresentations to a government entity, in violation of Code of Professional Responsibility DR 1-102(a)(4) and (5) (see 22 NYCRR 1200.3[a][4], [5]). In an affidavit the respondent submitted to the Supreme Court, Queens County, as part of his plea allocution, the respondent admitted that during the course of the investigation into the closings referred to him by Morris, the respondent initially provided conflicting information and false statements regarding his role and involvement in the closings to representatives of the Queens County District Attorney.

In his answer to the petition, the respondent admitted to all the underlying facts, but argued that a violation of Judiciary Law § 491 does not constitute a serious crime and that his conduct did not violate the Code of Professional Responsibility.

In the stipulation dated June 4, 2012, the parties, inter alia, stipulated to the truth of the facts alleged in the petition. Further, relative to charge two, the parties agreed to additional facts not contained in the petition, as follows: the respondent knew that John Weber and Associates was aware that Morris was a disbarred attorney. Pursuant to the agreement the respondent had with Morris, Morris would prepare all required documents regarding the real estate closings and, as agreed, Morris did prepare all the documents required for each of the closings. The respondent agreed to be present at the closings to review the documents and advise the party that he represented. The parties also agreed that a determination of whether a violation of Judiciary Law § 491 constituted a serious crime was a question of law, and that the issue would be submitted to the Special Referee to hear and report in accordance with the decision and order on motion of this Court dated April 22, 2010.

The respondent's contention that a violation of Judiciary Law § 491 does not constitute a serious crime is without merit. By decision and order on motion dated April 22, 2010, this Court immediately suspended the respondent from the practice of law based on his conviction of a serious crime. Not only does this determination constitute the law of the case, but this Court has previously held that a violation of Judiciary Law § 491 constitutes a serious crime (see Matter of Felman, 259 A.D.2d 68).

Based on the uncontroverted evidence adduced, including the respondent's admissions and the stipulation dated June 4, 2012, the Special Referee properly sustained all of the charges. Accordingly, the Grievance Committee's motion to confirm the Special Referee's report is granted and the ...


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