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In re Etah

Supreme Court of New York, Second Department

February 1, 2017

In the Matter of Lawrence Nkongho Etah, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Lawrence Nkongho Etah, respondent. Attorney Registration No. 4232476

         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 July 21, 2004. By decision and order on motion dated April 24, 2015, this Court (1) authorized the Grievance Committee to institute and prosecute a disciplinary proceeding against the respondent for acts of professional misconduct alleged in a verified petition dated October 21, 2014, (2) precluded the respondent from relitigating the factual specifications set forth in charges two and three of the verified petition pursuant to the doctrine of collateral estoppel, and (3) referred the issues raised to the Honorable Patrick A. Sweeney, as Special Referee, to hear and report on all issues with respect to charge one of the verified petition and solely on the issue of mitigation with respect to charges two and three of the verified petition.

          Mitchell T. Borkowsky, Hauppauge, NY (Michael Fuchs of counsel), for petitioner.

          Lawrence Nkongho Etah, Hempstead, NY, respondent pro se.

          RANDALL T. ENG, P.J., REINALDO E. RIVERA, MARK C. DILLON, RUTH C. BALKIN, SHERI S. ROMAN, JJ.

          OPINION & ORDER

          PER CURIAM.

         The Grievance Committee for the Tenth Judicial District (hereinafter the petitioner) served the respondent with a verified petition dated October 21, 2014, containing three charges of professional misconduct. After pre-hearing conferences held on June 22, 2015, and August 3, 2015, and a hearing conducted on September 24, 2015, the Special Referee filed a report dated January 15, 2016, in which he declined to sustain charge one, and found that the respondent set forth no mitigating factors to explain his conduct which gave rise to charges two and three. The petitioner moves to confirm the Special Referee's findings with respect to charges two and three, to disaffirm the findings as to charge one, and to impose such discipline upon the respondent as the Court deems just and appropriate. By cross motion, the respondent asks this Court to affirm the Special Referee's findings as to charge one, and disaffirm the findings with respect to charges two and three, to dismiss the petitioner's motion as untimely, and to decline to impose any discipline. We find that the Special Referee improperly declined to sustain charge one, and that based upon the evidence adduced at the hearing, charge one should have been sustained, and charges two and three were properly sustained.

         Charge one alleges that the respondent engaged in conduct prejudicial to the administration of justice, in violation of the former Code of Professional Responsibility DR 1- 102(a)(5) (22 NYCRR 1200.3[a][5]), now rule 8.4(d) of the Rules of Professional Conduct (22 NYCRR 1200.0), by utilizing his attorney trust account to assist his client in violating a court order, as follows:

         In or about 2006, the respondent represented Jose A. Flores in a matrimonial action entitled Claudia Deshuk-Flores v Jose A. Flores, commenced in the Supreme Court, Nassau County, under Index No. 201508/2006 (hereinafter the matrimonial action). During the course of the matrimonial action, the Honorable Angela G. Iannacci issued a preliminary conference order dated July 17, 2006, which, under a section entitled "Restraining Orders, " stated, in relevant part:

"Pending further order of this Court, neither party shall enter safe deposit box at Bank of New York, transfer, alienate, sell, mortgage, pledge or hypothecate any joint; marital; separate or business asset or property; neither party shall incur any debt except for ordinary and usual living expenses in the usual course of business of the parties."

         On or about August 4, 2006, the respondent deposited the sum of $3, 680, which he received in cash from Mr. Flores, into his attorney trust account maintained at JP Morgan Chase Bank (hereinafter the trust account). The respondent issued trust account check no. 1044, dated August 4, 2006, payable to "Mr. Walter Reed, " in the sum of $4, 000, to satisfy a business debt incurred by Mr. Flores.

         On or about August 7, 2006, the respondent deposited into his trust account check no. 6001187677, dated July 24, 2006, issued by Pershing, a BNY Securities Group Co., payable to "Jose A. Flores, " in the sum of $10, 001.14, which represented the liquidation of Mr. Flores's Individual Retirement Account (hereinafter the IRA check). A few days later, the respondent issued trust account check no. 1045, dated August 10, 2006, payable to himself, in the sum of $11, 001.14. This check represented, in part, the respondent's legal fees due from Mr. Flores in the sum of $6, 000.14.

         Charge two alleges that the respondent asserted frivolous claims in an appeal in that he knowingly asserted material factual statements that were false, in violation of rule 3.1 of the Rules of Professional Conduct (22 NYCRR 1200.0), and charge three alleges that the respondent engaged in conduct prejudicial to the administration of justice in violation of rule 8.4(d) of the Rules of Professional Conduct (22 NYCRR 1200.0), as follows:

         The factual specifications alleged in charge one are repeated and re-alleged herein. A judgment of divorce was issued in the matrimonial action by the Supreme Court, Nassau County (Zimmerman, J.), dated April 30, 2013, and entered May 1, 2013, which, upon a decision of the same court (Gartenstein, J.H.O.) dated December 20, 2011, made after a trial, granted the plaintiff a divorce on abandonment grounds, equitably distributed marital property, awarded the plaintiff maintenance, and directed Mr. Flores to pay child support.

         Thereafter, in an appeal filed by the respondent with this Court, he argued that the complaint commencing the matrimonial action was not properly executed and verified. In support thereof, within Mr. Flores's appendix, the respondent submitted a copy of a verified complaint which did not contain the plaintiff's signature. The respondent further ...


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