APPELLATE DIVISION DISCIPLINARY DECISIONS OF JULY 7, 2000

Respondent misrepresented the status of a case to a client, falsely represented that he had obtained a refund from a homeowner's association on behalf of the client and presented the client with a check, falsely asserting that the funds represented the amount due to the client after payment of his legal fee. The check was subsequently dishonored for insufficient funds. Additionally, petitioner's examination of respondent's trust account revealed that, on several occasions, respondent failed to maintain a balance equal to his clients' interests and commingled personal funds with clients' funds. Finally, during the investigation conducted by petitioner, respondent made false statements to its counsel and to its investigator, failed to produce requested files and documents in a timely manner and, in response to a subpoena, submitted documents that he had fabricated to support his false statements.

We conclude that respondent violated the following Disciplinary Rules of the Code of Professional Responsibility:

DR 1-102 (a) (3) (22 NYCRR 1200.3 [a] [3]) - engaging in illegal conduct that adversely reflects on his honesty, trustworthiness or fitness as a lawyer;

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 9-102 (a) (22 NYCRR 1200.46 [a]) - commingling client funds with his own funds;

DR 9-102 (b) (1) (22 NYCRR 1200.46 [b] [1]) - failing to maintain funds belonging to another person incident to his practice of law in a special account separate from his business or personal accounts;

DR 9-102 (c) (3) (22 NYCRR 1200.46 [c] [3]) - failing to maintain complete records of all funds, securities and other properties of a client or third person coming into his possession and render appropriate accounts to the client or third person regarding them;

DR 9-102 (d) (1) (22 NYCRR 1200.46 [d] [1]) - failing to maintain required records of bank accounts;

DR 9-102 (e) (22 NYCRR 1200.46 [e]) - making withdrawals from a special account payable to cash rather than to a named payee; and

DR 9-102 (i) (22 NYCRR 1200.46 [i]) - failing to make available to petitioner or produce in response to a subpoena issued by it the financial records required to be maintained by DR 9-102 (22 NYCRR 1200.46).

Respondent attributed his misconduct to negligent bookkeeping practices, poor judgment and personal embarrassment. We note, however, that respondent previously received a Letter of Admonition for similar misconduct. After consideration of all of the factors in this matter, we conclude that respondent should be suspended for three years and until further order of the Court. PRESENT: PINE, J. P., HAYES, WISNER, HURLBUTT AND KEHOE, JJ. (Filed July 7, 2000.)

MATTER OF RUTH F. ROSENBERG, A SUSPENDED ATTORNEY, RESPONDENT. GRIEVANCE COMMITTEE OF THE FIFTH JUDICIAL DISTRICT, PETITIONER. -- Resignation accepted, name stricken from roll of attorneys and order of restitution entered. PRESENT: PIGOTT, JR., P. J., GREEN, PINE, HAYES AND WISNER, JJ. (Filed July 7, 2000.)

MATTER OF RONALD A. SIPOS, AN ATTORNEY, RESPONDENT. GRIEVANCE COMMITTEE OF THE EIGHTH JUDICIAL DISTRICT, PETITIONER. -- Order of disbarment entered. Per Curiam Opinion: Respondent was admitted to the practice of law by this Court on February 15, 1983, and maintained an office for the practice of law in Grand Island. The Grievance Committee filed a petition charging that respondent, as the attorney for an estate, converted the proceeds from the sale of decedent's residence in the amount of $65,000 and failed to reimburse the estate, failed to pay estate taxes in a timely manner, which resulted in an assessment against the estate, and prepared and notarized the co-executor's signature on an affidavit falsely stating that the estate was not subject to Federal estate tax.

Respondent filed an answer denying material allegations of the petition, and outstanding issues of fact were resolved by stipulation.

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) (7) (22 NYCRR 1200.3 [a] [7]) - engaging in conduct that adversely reflects on his fitness as a lawyer;

DR 6-101 (a) (3) (22 NYCRR 1200.30 [a] [3]) - neglecting a legal matter entrusted to him;

DR 7-101 (a) (3) (22 NYCRR 1200.32 [a] [3]) - intentionally prejudicing or damaging a client during the course of the professional relationship; and

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.

We have considered the matters in mitigation submitted by respondent and conclude that respondent should be disbarred (see, Matter of Orsini, 231 AD2d 112). We direct respondent to pay restitution in the amount indicated in the petition. PRESENT: PINE, J. P., HAYES, WISNER, HURLBUTT AND SCUDDER, JJ. (Filed July 7, 2000.)

MATTER OF DAVID E. ZACEK, A SUSPENDED ATTORNEY, RESPONDENT. GRIEVANCE COMMITTEE OF THE FIFTH JUDICIAL DISTRICT, PETITIONER. -- Order of suspension vacated and order of censure entered. Per Curiam Opinion: Respondent was admitted to the practice of law by this Court on February 21, 1990, and maintained an office for the practice of law in Whitesboro. This Court, by order entered March 8, 2000, suspended respondent pending investigation of charges against him pursuant to Rule 1022.19 (f) (2) (22 NYCRR 1022.19 [f] [2]), for his failure to respond to subpoenas issued by petitioner. Petitioner subsequently filed charges against respondent, and respondent, in his answer, denied material allegations of the petition. Outstanding issues of fact have been resolved by stipulation, and respondent has filed a motion to vacate the suspension, which petitioner does not oppose.

We 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 6-101 (a) (3) (22 NYCRR 1200.30 [a] [3]) - neglecting a legal matter entrusted to him; and

DR 9-102 (c) (4) (22 NYCRR 1200.46 [c] [4]) - failing to deliver promptly to a client or third person as requested by the client or third person properties in his possession that the client or third person is entitled to receive.

We have considered the matters in mitigation submitted by respondent, including that the misconduct occurred during a period when respondent was suffering from depression, for which he sought counseling. Additionally, we note the support for the reinstatement of respondent expressed by many of his colleagues. We conclude that the motion by respondent to vacate his suspension should be granted and that he should be censured. We direct that respondent continue in counseling for his psychological problems. PRESENT: GREEN, J. P., PINE, WISNER, SCUDDER AND KEHOE, JJ. (Filed July 7, 2000.)