AD DECISIONS OF NOV 9, 2001

MATTER OF WILLIAM A. ARGENTIERI, FOR REINSTATEMENT TO THE PRACTICE OF LAW. -- Order entered denying application for reinstatement. Per Curiam Opinion: Petitioner was disbarred by order entered April 24, 1992, for acts of misconduct that included forging the name of an officer of a corporate client on a check and converting the proceeds, making false statements to clients and converting funds from his attorney trust account ( Matter of Argentieri , 180 AD2d 46). This Court, in the order of disbarment, directed that petitioner make restitution to his clients in the amount of $13,910.62. Petitioner was subsequently convicted of grand larceny in the second degree based upon the conduct that was the subject of the disciplinary proceeding. He was sentenced to a term of probation of 30 months and to perform 500 hours of community service. Petitioner applied for reinstatement in February 2001. After hearing oral argument on the application, this Court referred the matter to the Character and Fitness Committee for a hearing. The Committee filed a report recommending reinstatement, which petitioner moves to confirm. Respondent Grievance Committee filed an affirmation in opposition to the motion. We decline to consider respondent's affirmation in opposition. Inasmuch as respondent initially elected to take no position with regard to petitioner's application and declined to appear or participate in the hearing, we agree with petitioner that it would be inappropriate for us, at this stage of the proceedings, to consider respondent's arguments in opposition to petitioner's motion. This Court may reinstate a disbarred attorney who has established by clear and convincing evidence that he has complied with the order of disbarment and the rules of the Court, that he has the requisite character and fitness to practice law and that it would be in the public interest to reinstate him to the practice of law ( see , 22 NYCRR 1022.28). Petitioner admits that he failed to comply with that part of the order of disbarment directing him to make restitution to his clients. He testified that it was not until the summer of 2000 that he was financially able to pay the restitution ordered in 1992 and, at that point, he was unable to locate some of the clients in order to pay them. Inasmuch as petitioner owed four of his clients less than $100 and two clients were owed $5.00 and $13.94, respectively, we are not persuaded by petitioner's explanation that he was financially unable for a period of eight years to pay any of the restitution ordered. It appears instead that petitioner made no genuine effort to comply with this Court's order until shortly before he sought reinstatement to practice. Nor do we find from our review of the record that petitioner has sustained his burden of demonstrating by clear and convincing evidence that he has the requisite character and fitness to practice law or that it would be in the public interest to reinstate him. Accordingly, we reject the recommendation of the Character and Fitness Committee and deny petitioner's application. PRESENT: GREEN, J. P., PINE, HAYES, HURLBUTT AND BURNS, JJ. (Filed Nov. 9, 2001.)

MATTER OF PETER V. CALVIERA, AN ATTORNEY, RESPONDENT. -- Order of suspension entered pursuant to Judiciary Law § 90 (2-a) (c). PRESENT: PIGOTT, JR., P. J., WISNER, HURLBUTT, KEHOE AND LAWTON, JJ. (Filed Oct. 31, 2001.)

MATTER OF RAYMOND J. DZIEDZIC, AN ATTORNEY, RESPONDENT. GRIEVANCE COMMITTEE OF THE EIGHTH JUDICIAL DISTRICT, PETITIONER. -- Order of suspension entered. Per Curiam Opinion: Respondent was admitted to the practice of law by this Court on June 23, 1988, and maintains an office for the practice of law in Buffalo. The Grievance Committee (petitioner) filed a petition charging respondent with acts of professional misconduct arising from his representation of a client in a personal injury action and from his conduct during petitioner's investigation into the allegations of misconduct. Respondent filed an answer denying certain allegations of the petition and outstanding issues of fact were subsequently resolved by stipulation. Respondent appeared before this Court to submit matters in mitigation. Respondent admits that he made false statements to a client regarding the status of the client's matter, falsely represented to the client that a settlement had been reached and presented fictitious documents in support of his misrepresentations. During petitioner's investigation into the client's complaint, respondent made false statements to petitioner's counsel and presented false documents in support of his statements. We conclude that respondent violated the following Disciplinary Rules of the Code of Professional Responsibility: DR 1-102 (a) (4) (22 NYCRR 1200.3 [a] [4]) - engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; DR 1-102 (a) (5) (22 NYCRR 1200.3 [a] [5]) - engaging in conduct that is prejudicial to the administration of justice; DR 1-102 (a) (7) (22 NYCRR 1200.3 [a] [7]) - engaging in conduct that adversely reflects on his fitness as a lawyer; and DR 6-101 (a) (3) (22 NYCRR 1200.30 [a] [3]) - neglecting a legal matter entrusted to him. We have considered the matters in mitigation, including the personal problems encountered by respondent following the tragic death of his wife and injuries sustained by his daughter. We note, however, that respondent received three prior Letters of Caution for neglecting a client's matter and failing to cooperate with petitioner's investigation. Accordingly, we conclude that respondent should be suspended for one year and until further order of the Court. PRESENT: GREEN, J. P., PINE, HAYES, SCUDDER AND BURNS, JJ. (Filed Nov. 9, 2001.)

MATTER OF WILLIE R. FELTON, FOR REINSTATEMENT TO THE PRACTICE OF LAW. -- Order entered denying application for reinstatement. PRESENT: PIGOTT, JR., P. J., WISNER, HURLBUTT, KEHOE AND LAWTON, JJ. (Filed Nov. 9, 2001.)

MATTER OF JOSEPH A. GIORGI, FOR REINSTATEMENT TO THE PRACTICE OF LAW. -- Order entered terminating suspension and reinstating petitioner as an attorney and counselor at law. PRESENT: GREEN, J. P., PINE, HAYES, SCUDDER AND BURNS, JJ. (Filed Oct. 31, 2001.)

MATTER OF ROBERT W. HYSERT, AN ATTORNEY, RESPONDENT. GRIEVANCE COMMITTEE OF THE EIGHTH JUDICIAL DISTRICT, PETITIONER. -- Order of suspension entered. Per Curiam Opinion: Respondent was admitted to the practice of law by this Court on February 20, 1979, and maintains an office for the practice of law in Tonawanda. The Grievance Committee filed a petition charging respondent with acts of professional misconduct. Respondent filed an answer denying material allegations of the petition, and a Referee was appointed to conduct a hearing. Prior to the hearing, respondent admitted the factual allegations of the petition, as amended. A hearing was held on respondent's defense, and the Referee filed a report, which the Grievance Committee moves to confirm in part and disaffirm in part. The Grievance Committee also moves for the immediate suspension of respondent, pursuant to 22 NYCRR 1022.20 (e), on the ground that respondent has committed misconduct immediately threatening the public interest. Respondent filed no papers in response to either motion and failed to appear before the Court on the scheduled return date. Respondent admitted that he neglected two personal injury actions, one of which was dismissed to the prejudice of respondent's client, two matrimonial matters and one child support proceeding, that he failed to participate in a domestic relations fee arbitration program and that he did not cooperate with the Grievance Committee's investigation. In addition, respondent admitted that, over a two-year period, he failed to respond to numerous telephone calls and letters from clients, court personnel and the Grievance Committee. Respondent maintained that he never received the unanswered communications. We confirm the findings of fact made by the Referee and conclude that respondent violated the following Disciplinary Rules of the Code of Professional Responsibility: DR 1-102 (a) (5) (22 NYCRR 1200.3 [a] [5]) - engaging in conduct that is prejudicial to the administration of justice; DR 1-102 (a) (7) (22 NYCRR 1200.3 [a] [7]) - engaging in conduct that adversely reflects on his fitness as a lawyer; DR 2-106 (e) (22 NYCRR 1200.11 [e]) - failing to resolve a fee dispute in a domestic relations matter by arbitration; DR 6-101 (a) (3) (22 NYCRR 1200.30 [a] [3]) - neglecting legal matters entrusted to him; and DR 7 -101 (a) (3) (22 NYCRR 1200.32 [a] [3]) - prejudicing or damaging a client during the course of the professional relationship. Accordingly, after consideration of all the factors in this matter, including respondent's explanation for his misconduct, we conclude that respondent should be suspended for a period of two years and until further order of the Court. Given our disposition of this matter, the Grievance Committee's motion for the immediate suspension of respondent is dismissed as moot. PRESENT: PIGOTT, JR., P. J., WISNER, HURLBUTT, KEHOE AND LAWTON, JJ. (Filed Nov. 9, 2001.)

MATTER OF MARC C. PANEPINTO, AN ATTORNEY, RESPONDENT. -- Order of suspension entered pursuant to Judiciary Law § 90 (4) (f). PRESENT: PIGOTT, JR., P. J., WISNER, HURLBUTT, KEHOE AND SCUDDER, JJ. (Filed Oct. 31, 2001.)

MATTER OF SALVATORE J. PIEMONTE, A SUSPENDED ATTORNEY, RESPONDENT. -- Final order of suspension entered. Per Curiam Opinion: Respondent was admitted to the practice of law by this Court on June 26, 1980, and formerly maintained an office for the practice of law in Syracuse. On January 26, 2001, respondent was convicted upon his plea of guilty in the United States District Court for the Northern District of New York of filing a false document (26 USC § 7207), a misdemeanor. Respondent admitted that he falsely identified the source of cash in the amount of $11,000 on an Internal Revenue Service form. Respondent was sentenced to a term of imprisonment of 90 days and was ordered to pay a fine in the amount of $2,500. This Court determined that filing a false document is a serious crime within the meaning of Judiciary Law § 90 (4) (d), and, on February 8, 2001, entered an order suspending respondent and directing him to show cause why a final order of discipline should not be entered. Respondent appeared before the Court and requested a hearing prior to disposition pursuant to Judiciary Law § 90 (4) (h) and a Referee was appointed to conduct a hearing. The Referee filed a report, which the Grievance Committee moves to confirm in part. We confirm the findings of fact made by the Referee, including the finding in mitigation that the addiction of respondent to alcohol and cocaine affected his judgment. We note in aggravation, however, that respondent was previously suspended upon his conviction of tampering with a witness (Penal Law § 215.10), and, in a subsequent application for reinstatement, he failed to inform this Court that he was the subject of a Federal investigation into charges that resulted in his plea in the instant case. Accordingly, after consideration of all of the factors in this matter, we conclude that respondent should be suspended for three years, effective February 8, 2001, and until further order of the Court. PRESENT: PIGOTT, JR., P. J., WISNER, HURLBUTT, KEHOE AND LAWTON, JJ. (Filed Nov. 9, 2001.)

MATTER OF JAMES A. RESTI, AN ATTORNEY, RESPONDENT. GRIEVANCE COMMITTEE OF THE FIFTH JUDICIAL DISTRICT, PETITIONER. -- Order of suspension entered. Per Curiam Opinion: Respondent was admitted to the practice of law by this Court on February 21, 1978, and maintains an office for the practice of law in Syracuse. The Grievance Committee filed a petition charging respondent with acts of professional misconduct arising from his neglect of client matters. Respondent filed an answer denying material allegations of the petition, and a Referee was appointed to conduct a hearing. The Referee filed a report, which the Grievance Committee moves to confirm. Respondent's admissions and the testimony at the hearing establish that respondent neglected the matters of six clients, resulting in the entry of two default judgments and the need for the clients to hire new counsel to resurrect their cases; failed to maintain required trust account and bank records; failed to return promptly unearned fees and client files; and failed to cooperate with the investigation of the Grievance Committee. We confirm the findings of fact made by the Referee and conclude that respondent violated the following Disciplinary Rules of the Code of Professional Responsibility: DR 1-102 (a) (4) (22 NYCRR 1200.3 [a] [4]) - engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; DR 1-102 (a) (5) (22 NYCRR 1200.3 [a] [5]) - engaging in conduct that is prejudicial to the administration of justice; DR 1- 102 (a) (7) (22 NYCRR 1200.3 [a] [7]) - engaging in conduct that adversely reflects on his fitness as a lawyer; DR 2-110 (a) (3) (22 NYCRR 1200.15 [a] [3]) - failing to return unearned fees to clients; DR 6 -101 (a) (3) (22 NYCRR 1200.30 [a] [3]) - neglecting legal matters entrusted to him; DR 7-101 (a) (1) (22 NYCRR 1200.32 [a] [1]) - intentionally failing to seek the lawful objectives of clients; DR 7-101 (a) (3) 22 NYCRR 1200.32 [a] [3]) - intentionally prejudicing or damaging a client during the course of the professional relationship; DR 9-102 (b) (1) (22 NYCRR 1200.46 [b] [1]) - failing to maintain funds of a client in a special account separate from his business or personal accounts; DR 9-102 (b) (2) (22 NYCRR 1200.46 [b] [2]) - failing to identify his attorney trust account in a proper manner; DR 9-102 (c) (3) (22 NYCRR 1200.46 [c] [3]) - failing to maintain complete records of all funds and other property of clients or third persons coming into his possession and render appropriate accounts to the clients or third persons; DR 9-102 (c) (4) (22 NYCRR 1200.46 [c] [4]) - failing to deliver promptly to clients property in his possession that the clients were entitled to receive; DR 9-102 (d) (22 NYCRR 1200.46 [d]) - failing to maintain required records of bank accounts; DR 9-102 (e) (22 NYCRR 1200.46 [e]) - issuing attorney trust account checks made payable to cash rather than to a named payee; and DR 9-102 (j) (22 NYCRR 1200.46 [j]) - failing to produce required bookkeeping records in response to a notice issued by the Grievance Committee. We further conclude that respondent violated 22 NYCRR 1400.2, by failing to provide to a client a statement of client's rights and responsibilities, and 22 NYCRR 1400.3, by failing to provide a client with a written retainer agreement. We have considered the matters submitted by respondent in mitigation. We note, however, that respondent failed to avail himself of the opportunity afforded to him by the Referee to present medical documentation in mitigation. Additionally, we note that respondent was previously suspended from the practice of law for three months by this Court upon his misdemeanor conviction of failing to file an income tax return and that he previously received a Letter of Caution for neglecting a client matter. Accordingly, after consideration of all the factors in this matter, we conclude that respondent should be suspended for a period of one year and until further order of the Court. PRESENT: GREEN, J. P., PINE, SCUDDER, BURNS AND GORSKI, JJ. (Filed Nov. 9, 2001.)

MATTER OF JAMES D. SALAMONE, JR., A SUSPENDED ATTORNEY, RESPONDENT. -- Order of disbarment entered. Per Curiam Opinion: Respondent was admitted to the practice of law by this Court on June 24, 1993. On May 11, 2001, he was convicted in the United States District Court for the Western District of New York of knowingly and unlawfully using a communication facility to distribute marihuana, in violation of 21 USC § 843 (b), a Federal felony. By order entered June 1, 2001, this Court suspended respondent and directed him to show cause why a final order of discipline should not be entered. Respondent appeared before this Court in response to the order to show cause and argued that there is no corresponding New York felony. The Grievance Committee filed an affirmation in support of the position that, if committed in New York, respondent's conduct would constitute conspiracy in the fourth degree (Penal Law § 105.10 [1]), a class E felony. We agree. Respondent was convicted of agreeing with another to distribute more than 100 kilograms of marihuana. The Federal crime of which respondent was convicted includes all of the elements of Penal Law § 105.10 (1). Inasmuch as respondent has been convicted of an offense that, if committed in New York, would be classified as a felony, he is disbarred by operation of law ( see , Judiciary Law § 90 [4] [a], [e]; Matter of Delany , 87 NY2d 508, 512; Matter of Johnston , 75 NY2d 403, 405). PRESENT: PIGOTT, JR., P. J., WISNER, HURLBUTT, KEHOE AND LAWTON, JJ. (Filed Nov. 9, 2001.)