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In re Fischer

Supreme Court of New York, Second Department

December 29, 2017

In the Matter of James H. Fischer, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; James H. Fischer, respondent. Attorney Registration No. 2511020

         DISCIPLINARY PROCEEDING instituted by the Grievance Committee for the Tenth Judicial District. By decision and order on motion dated April 5, 2017, this Court, inter alia, referred the issues raised in the verified petition dated October 18, 2016, the respondent's answer dated December 14, 2016, and the statements of disputed and undisputed facts filed by each party, 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 First Judicial Department on January 20, 1993.

          Catherine A. Sheridan, Hauppauge, NY (Nancy B. Gabriel of counsel), for petitioner.

          Long, Tuminello, LLP, Bayshore, NY (David Besso and Michelle Aulivola), for the respondent.

          RANDALL T. ENG, P.J., WILLIAM F. MASTRO, REINALDO E. RIVERA, MARK C. DILLON, JOSEPH J. MALTESE, JJ.

          OPINION & ORDER

          PER CURIAM.

         The Grievance Committee for the Tenth Judicial District served the respondent with a verified petition dated October 18, 2016, containing two charges of professional misconduct. After a hearing held on June 13, 2017, the Special Referee sustained both charges in a report dated August 22, 2017. The petitioner now moves for an order confirming the report of the Special Referee and imposing such discipline upon the respondent as the Court deems appropriate. In an affirmation in response, the respondent's counsel acknowledges that the respondent has admitted the factual allegations underlying the charges, and in view of the evidence adduced and the mitigating factors presented, requests that the matter be referred back to the petitioner for a private reprimand or at most, the Court impose a public censure.

         The charges emanate from a dishonored check issued from the respondent's attorney trust account at Chase Bank, account no. ending 4063, entitled "James Fischer DBA Fischer Attorney At Law Trust Account IOLA" (hereinafter the trust account). Based upon the respondent's admissions, his sworn testimony, and the evidence adduced, in relevant part, the facts are as follows:

         The Reyes Matter

         The respondent represented an infant, Elizabeth Reyes, who had been a passenger in a vehicle which was involved in an automobile accident. In or about July 2015, Ms. Reyes' matter was settled for $10, 000. The respondent received and deposited into the trust account two settlement checks from Geico General Insurance Company, each made payable to "Jose Reyes as custodian of Elizabeth Reyes." The first check, in the sum of $3, 481.91, was deposited on July 27, 2015, and the second check, in the sum of $6, 518.09, was deposited the following day, July 28, 2015. From the Reyes settlement proceeds, the respondent issued three checks, as follows:

(1) Check no. 1161, dated August 4, 2015, in the amount of $2, 481.91, payable to "Steven Smith, " his co-counsel for the Reyes matter. This check cleared the trust account on August 10, 2015;
(2) Check no. 1162, dated September 5, 2015, in the amount of $1, 000, payable to the respondent for his legal fee. This check cleared the trust account on September 8, 2015;
(3) Check no. 1160, dated August 4, 2015, in the amount of $6, 518.09, payable to "Jose Reyes as custodian for Elizabeth Reyes." When this check was presented on October 30, 2015, it was dishonored, as the trust account balance was $196.69, well below the $6, 518.09 due the respondent's client.

         By letter dated December 1, 2015, the Lawyers' Fund for Client Protection forwarded to the petitioner and the respondent a copy of a report dated October 30, 2015, from Chase Bank indicating that respondent's check no. 1160 had been returned. A sua sponte complaint against the respondent was initiated by the petitioner based upon the dishonored check report. The respondent eventually paid the settlement funds by forwarding Mr. Reyes a cashier's check, dated January 4, 2016, in the sum of $6, 518.09, and made payable to "Jose Reyes as custodian for Elizabeth Reyes."

         The Washington ...


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