APPELLATE DIVISION DISCIPLINARY DECISIONS OF JUNE 8, 2001

MATTER OF WILLIAM F. CARRIGAN, JR., A SUSPENDED ATTORNEY, RESPONDENT. GRIEVANCE COMMITTEE OF THE FIFTH JUDICIAL DISTRICT, PETITIONER. -- Order of disbarment entered. Per Curiam Opinion: Respondent was admitted to the practice of law by this Court on June 28, 1978, and formerly maintained 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 repeated use of cocaine in violation of a condition of the term of probation that was imposed following his conviction of criminal contempt in the second degree (Penal Law § 215.50 [3]), a class A misdemeanor.

Respondent failed to file an answer or appear in response to the petition, and, by order entered January 20, 1999, this Court suspended respondent and directed him to show cause why a final order of discipline should not be entered. When respondent failed to appear as directed, he was suspended until further order of this Court, based upon his default. Respondent admitted the allegations of the petition in an answer filed on June 20, 2000.

The Grievance Committee filed a supplemental petition alleging that, in violation of this Court's order of suspension, respondent continued to employ and direct the activity of a paralegal; that he failed to close his law office or his attorney trust account; that he issued checks drawn against his attorney trust account; and that he performed legal services on behalf of an estate. In an answer filed in response to the supplemental petition, respondent declined to respond to the charges on the ground that his responses could incriminate him in a pending criminal investigation related to the theft of clients' funds. This Court treated the answer as a denial of the charges, and a Referee was appointed to conduct a hearing.

At the hearing, respondent admitted that he failed to close his law office or his attorney trust account following his suspension and that he issued checks drawn on the trust account made payable to himself. He directed his paralegal to obtain from the executor of an estate a check made payable to the Internal Revenue Service for estate taxes so that respondent could finalize the matter. The check obtained by the paralegal, however, was made payable to respondent. The paralegal obtained respondent's endorsement, exchanged the check for a bank check for an amount less than the amount of the estate taxes, deposited the surplus funds into respondent's attorney trust account and converted the funds by issuing checks made payable to himself. Additionally, the paralegal converted the funds of other clients by forging respondent's endorsement to trust account checks.

The Referee filed a report, which the Grievance Committee now moves to confirm. Respondent has failed to file any papers or personally appear in response to the motion.

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 1-104 (c) (22 NYCRR 1200.5 [c]) - failing to supervise adequately a nonlawyer employee;

DR 1-104 (d) (2) (22 NYCRR 1200.5 [d][2]) - failing to take reasonable remedial action to avoid or mitigate the consequences of conduct constituting a violation of the Disciplinary Rules by a nonlawyer employee over whom he has supervisory authority when he knows or should have known of such conduct;

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;

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; and

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.

In mitigation, we have considered that the misconduct occurred during a period when respondent was abusing cocaine. Respondent, however, has not demonstrated that he has overcome his addiction to cocaine. By delegating to his paralegal his responsibility to finalize an estate and by failing to supervise the paralegal, which resulted in a loss to the estate of an amount in excess of $80,000, respondent has "abdicat[ed] his responsibility to manage his law practice" (Matter of Stenstrom, 194 AD2d 277, 280). Moreover, the conduct of respondent in continuing to operate a law practice after being served with this Court's order of suspension constitutes criminal contempt of court (see, Judiciary Law § 750 [A] [3]; Matter of Foley, 240 AD2d 64, 66; see also, Matter of Michalek, 180 AD2d 67). Finally, the failure of respondent to file any papers or to appear in response to the motion to confirm the Referee's report evinces the same lack of interest that he has demonstrated from the onset of this proceeding. Accordingly, we conclude that respondent should be disbarred (see, Matter of Stenstrom, supra). We direct respondent to make restitution to the Suchon estate, as set forth in the order entered herewith. PRESENT: PIGOTT, JR., P. J., WISNER, HURLBUTT, KEHOE AND LAWTON, JJ. (Filed June 8, 2001.)

MATTER OF JOSEPH M. COX, 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 January 11, 1990, and maintains an office for the practice of law in Buffalo. The Grievance Committee filed a petition charging respondent with acts of professional misconduct arising from the use and maintenance of his attorney trust account, and with other acts of misconduct. Respondent filed an answer denying material allegations of the petition, and a Referee was appointed to conduct a hearing. Prior to the hearing, the parties executed a stipulation resolving outstanding issues of fact. Respondent appeared before this Court and submitted matters in mitigation.

Respondent admits that he accepted cash from a client, which was to be paid to a third party in settlement of a claim, and that he placed the cash in a safe in his office and failed to deposit it into his attorney trust account or keep any record documenting the maintenance of the cash. Further, he admits that he issued checks from his attorney trust account that were dishonored for insufficient funds; that he issued trust account checks for expenses on behalf of clients for which he had no funds on deposit, for non-client matters and for amounts made payable to himself with no reference regarding the purpose; that the balance in the trust account was consistently less than the amount of his clients' interests; and that he deposited personal funds into the trust account.

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 2-110 (a) (3) (22 NYCRR 1200.15 [a] [3]) - withdrawing from employment without refunding promptly an unearned legal fee;

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

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

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 (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]) - issuing trust account checks made payable to cash rather than to a named payee; and

DR 9-102 (i) (22 NYCRR 1200.46 [i]) - failing to produce required bookkeeping records in response to a notice issued by petitioner.

We have considered the matters submitted by respondent in mitigation, including his illness. We note, however, that respondent was previously censured by this Court for similar misconduct and that the censure was imposed shortly before the misconduct that is the subject of the instant charges. Accordingly, we conclude that respondent should be suspended for three years and until further order of the Court (see, Matter of Rudin, 280 AD2d 200). PRESENT: PIGOTT, JR., P. J., WISNER, HURLBUTT, KEHOE AND LAWTON, JJ. (Filed June 8, 2001.)

MATTER OF WILLIAM J. MC DONALD, AN ATTORNEY, RESPONDENT. GRIEVANCE COMMITTEE OF THE EIGHTH JUDICIAL DISTRICT, PETITIONER. -- Resignation accepted, name stricken from roll of attorneys and order of restitution entered. PRESENT: GREEN, J. P., PINE, HAYES, SCUDDER AND BURNS, JJ. (Filed June 8, 2001.)

MATTER OF JONATHAN I. RAPOPORT, AN ATTORNEY, RESPONDENT. -- Order of suspension entered pursuant to Judiciary Law § 90 (4) (f). PRESENT: GREEN, J. P., PINE, HAYES, SCUDDER AND BURNS, JJ. (Filed May 30, 2001.)

MATTER OF JAMES D. SALAMONE, JR., AN ATTORNEY, RESPONDENT. -- Order of suspension entered pursuant to Judiciary Law § 90 (4) (f). PRESENT: PIGOTT, JR., P. J., WISNER, HURLBUTT, KEHOE AND LAWTON, JJ. (Filed June 1, 2001.)

MATTER OF ROBERT J. WHITBREAD, A SUSPENDED ATTORNEY, RESPONDENT. GRIEVANCE COMMITTEE OF THE SEVENTH JUDICIAL DISTRICT, PETITIONER. -- Order of disbarment entered. Memorandum: Respondent's unexcused failure to appear or answer the petition constitutes a default. PRESENT: GREEN, J. P., PINE, HAYES, SCUDDER AND BURNS, JJ. (Filed June 8, 2001.)