In the Matter of Learie Richard Wilson, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Learie Richard Wilson, respondent. (Attorney Registration No. 3062130)
DISCIPLINARY PROCEEDING instituted by the Grievance Committee for the Tenth Judicial District. By decision and order of this Court dated June 30, 2011, the Grievance Committee for the Tenth Judicial District was authorized to institute and prosecute a disciplinary proceeding against the respondent based upon the acts of professional misconduct set forth in a verified petition dated May 3, 2011, and the issues raised by the petition and any answer thereto were referred to Norma Giffords, Esq., as Special Referee, to hear and report. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on July 26, 2000.
Robert A. Green, Hauppauge, N.Y. (Mitchell T. Borkowsky of counsel), for petitioner.
McDonough & McDonough, LLP, Garden City, N.Y. (Chris McDonough of counsel), for respondent.
RANDALL T. ENG, P.J., WILLIAM F. MASTRO, REINALDO E. RIVERA, PETER B. SKELOS, MARK C. DILLON, JJ.
OPINION & ORDER
The Grievance Committee for the Tenth Judicial District served the respondent with a verified petition dated May 3, 2011, containing three charges of professional misconduct. Following a hearing, the Special Referee sustained charge one, but declined to sustain charges two and three. The Grievance Committee now moves to confirm in part, and disaffirm in part, the Special Referee's report, and to impose such discipline as this Court deems appropriate. The respondent, by his attorney, moves to confirm in part, and disaffirm in part, the Special Referee's report. He urges that all charges be rejected, and that no discipline be imposed. We find that the Special Referee properly sustained charge one and that she properly declined to sustain charge three. However, we find that the Special Referee improperly declined to sustain charge two, and that charge two should have been sustained based upon the evidence adduced.
Charge one, as amended, alleges that the respondent engaged in conduct involving dishonesty, deceit, fraud, or misrepresentation, and conduct adversely reflecting on his fitness as a lawyer, by aiding and abetting a client in deceiving a lender at a real estate closing by withholding material information from the lender, in violation of former Code of Professional Responsibility DR 1-102(a)(4) and (7) (22 NYCRR 1200.3[a], ), as follows:
On or before December 16, 2008, Amarbin Ahmed retained the respondent to represent him and his company, Bluenur, Inc. (hereinafter Bluenur), in connection with the purchase of an investment property located in the Bronx (hereinafter the premises) from Gladys Carter. At that time, Carter was facing loss of the premises through foreclosure.
When Ahmed first met the respondent, Ahmed was already in possession of a contract of sale, which provided for a sale price of $385, 000, a down payment of $25, 000, and a balance of $360, 000 due to Carter at closing. However, at the time the respondent was retained, Ahmed had not yet delivered the down payment of $25, 000 to Carter or her attorney. Nonetheless, Ahmed had already secured a commitment for a loan of $345, 000 from a private money lender, Thomas Gubitosi, in Gubitosi's capacity as trustee of a trust entitled Thomas Gubitosi TTEE Marie Holdings, Inc., RET PSB FBO Thomas Gubitosi. The $345, 000 loan was to be secured by a first mortgage on the premises (hereinafter the first mortgage).
In addition to the first mortgage, Ahmed had also secured a commitment from Gubitosi for a line of credit (hereinafter the construction line of credit) for up to an additional $90, 000, to be available to Ahmed and Bluenur following the closing, for construction and renovations at the premises in connection with Bluenur's proposed sale to a third party. The construction line of credit also was to be secured by a mortgage on the premises.
The closing on the transaction was scheduled for December 16, 2008, at the offices of Gubitosi's attorneys in Farmingdale. Prior thereto, it was calculated that the balance due, out of pocket, from Ahmed and Bluenur to Carter at the closing, net of the first mortgage proceeds, would be $46, 642 (hereinafter the balance due). The balance due comprised the $25, 000 down payment, which still had not been delivered, plus an additional $21, 642.
On or about December 16, 2008, the respondent accompanied Ahmed to the closing. However, Ahmed did not bring sufficient funds to cover the balance due. Rather, the respondent brought with him to the closing a Chase Bank official check in the amount of $21, 642, payable to Carter. The remitter listed on the bank check was Lisa Kernahan, an owner or employee of Central Abstract, a title company. At all relevant times, the respondent was an owner of, or had an equitable interest in, Central Abstract, whose offices were located upstairs from the respondent's law office.
The $21, 642 check was intended by the respondent to be either (1) a loan to Ahmed, for the purpose of assisting him in paying the balance due to Carter at the closing, or (2) the respondent's own investment in the premises. On or about December 16, 2008, the respondent produced the $21, 642 check and showed it to the other parties at the closing, including Gubitosi's attorney. At some point during the closing, the respondent retook possession and control of the $21, 642 check.
During the closing, the respondent and Ahmed met with Carter and her attorney outside of the presence of Gubitosi's attorney. In the course of that meeting, the respondent prepared a handwritten note stating:"Learie R. Wilson, an attorney duly admitted to practice before the courts of New York, personally guarantee [sic] that I will deliver ...