MATTER OF ROBERT M. WALLACE, AN ATTORNEY, RESIGNOR. -- Voluntary resignation accepted and name removed from roll of attorneys (see Matter of Manown, 240 AD2d 83). PRESENT: PIGOTT, JR., P.J., HURLBUTT, KEHOE, MARTOCHE, AND LAWTON, JJ. (Filed Dec. 6, 2004.)

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MATTER OF MITCHELL K. FRIEDMAN, 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 the Appellate Division, Second Department, on June 2, 1982, and maintains an office for the practice of law in Brooklyn. The disciplinary investigation in this matter was transferred to this Department by order of the Presiding Justice of the Second Department dated May 23, 2002. After the completion of the investigation, the Grievance Committee filed a petition charging respondent with acts of misconduct including neglect. Respondent filed an answer denying material allegations of the petition and, by order entered April 15, 2004, a referee was appointed to conduct a hearing. Respondent’s motion for a change of venue or for an order transferring the matter to another judicial department was denied by this Court on May 26, 2004. Prior to the hearing, the parties executed a stipulation resolving certain outstanding issues of fact. Respondent was the sole witness at the hearing. After the hearing, the Referee filed a report, which the Grievance Committee moves to confirm. Respondent filed papers in opposition to the motion, and he thereafter appeared before this Court and submitted matters in mitigation.

    The Referee found, based largely upon respondent’s admissions, that respondent failed for a period of four years to reschedule depositions in a personal injury matter entrusted to him by his employer. In another personal injury matter, respondent failed to appear at scheduled meetings with the client and failed to respond to a demand for a bill of particulars and to discovery requests, resulting in the entry of an order of preclusion, and, eventually, in the matter being marked off the calendar. In a third personal injury matter, respondent’s failure to advance the matter resulted in the matter being twice marked off the calendar. Additionally, respondent admitted that he advanced funds to that client. Finally, respondent admitted that, during the disciplinary investigation, he failed to respond to numerous letters from counsel for 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) (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 5-103 (a) (22 NYCRR 1200.22 [a]) - acquiring a proprietary interest in the cause of action or subject matter of litigation that he is conducting for a client;

    DR 5-103 (b) (22 NYCRR 1200.22 [b]) - advancing or guaranteeing financial assistance to a client while representing the client in connection with contemplated or pending litigation;

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

    DR 7-101 (a) (2) (22 NYCRR 1200.32 [a] [2]) - intentionally failing to carry out a contract of employment entered into with a client for professional services.

    We have considered the matters submitted by respondent in mitigation, including his alleged health problems. Respondent, however, offered no medical documentation in support of those alleged health problems. He expressed no remorse, and instead offered unsubstantiated excuses for his misconduct. Additionally, we note that respondent previously received a Letter of Caution for similar misconduct. Accordingly, after consideration of all of 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, GORSKI, AND HAYES, JJ. (Filed Dec. 30, 2004.)

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MATTER OF THOMAS A. LENKIEWICZ, AN ATTORNEY, RESPONDENT. GRIEVANCE COMMITTEE OF THE FIFTH JUDICIAL DISTRICT, PETITIONER. -- Order of censure entered. Per Curiam Opinion: Respondent was admitted to the practice of law by this Court on March 26, 1981, and maintains an office for the practice of law in Syracuse. The Grievance Committee filed a petition charging respondent with acts of misconduct including neglect. Respondent filed an answer admitting certain material allegations of the petition, and outstanding issues of fact were thereafter resolved by stipulation. Respondent appeared before this Court and submitted matters in mitigation.Respondent admits that he failed to respond to inquiries from clients in criminal matters, resulting in the untimely filing of notices of appeal in two such matters. He also admits that he failed to respond to correspondence and directives from this Court regarding the criminal matters of five clients. Finally, respondent admits that, during the disciplinary investigation, he failed to comply with the Grievance Committee’s request that he provide written responses to client complaints.

    We conclude that respondent has 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; and

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

    We have considered the matters submitted by respondent in mitigation, including that, at the time of the misconduct, he suffered from adult attention deficit hyperactivity disorder, for which he has sought treatment. Accordingly, after consideration of all of the factors in this matter, we conclude that respondent should be censured. PRESENT: PIGOTT, JR., P.J., HURLBUTT, KEHOE, MARTOCHE, AND LAWTON, JJ. (Filed Dec. 30, 2004.)

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MATTER OF PAUL I. MILES, AN ATTORNEY, RESIGNOR. -- Resignation accepted and name stricken from roll of attorneys. PRESENT: PIGOTT, JR., P.J., HURLBUTT, KEHOE, MARTOCHE, AND LAWTON, JJ. (Filed Dec. 8, 2004.)

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MATTER OF EDWARD J. O’CONNOR, AN ATTORNEY, RESIGNOR. -- Resignation accepted, name stricken from roll of attorneys and order of restitution entered. PRESENT: PIGOTT, JR., P.J., HURLBUTT, KEHOE, MARTOCHE, AND LAWTON, JJ. (Filed Dec. 8, 2004.)

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MATTER OF MARK J. O’CONNOR, 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 September 12, 1973, and maintains an office for the practice of law in Amherst. The Grievance Committee filed a petition charging respondent with acts of misconduct arising from his representation of one client in several matters. Respondent filed an answer denying material allegations of the petition, and a referee was appointed to conduct a hearing. Following the hearing, the Referee filed a report, which the Grievance Committee moves to confirm.The Referee found that respondent commingled personal funds with client funds; failed to maintain a proper attorney trust account for client funds, or appropriate records; issued checks drawn against his attorney trust account payable to cash; failed to account for and disburse client and third-party funds in a proper manner; misrepresented to a law enforcement officer and to a chief of the Seneca Indian Nation that he represented a certain party; misrepresented material facts to the Allegany Peace Makers Court of the Seneca Nation; entered into a commercial gem venture with clients; and neglected a legal matter entrusted to him.We confirm the findings of fact made by the Referee and conclude that respondent has 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 5-104 (former [a]) (22 NYCRR 1200.23 [former (a)]) - entering into a business transaction with a client if they have differing interests therein and if the client expects the lawyer to exercise professional judgment therein for the protection of the client, unless the client has consented after full disclosure;

    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) (2) (22 NYCRR 1200.46 [b] [2]) - failing to identify a special bank account in a proper manner;

    DR 9-102 (b) (4) (22 NYCRR 1200.46 [b] [4]) - failing to maintain disputed funds in a special account;

DR 9-102 (c) (1) (22 NYCRR 1200.46 [c] [1]) - failing to notify a client or third party promptly of the receipt of funds in which the client or third party has an interest;

    DR 9-102 (c) (3) (22 NYCRR 1200.46 [c] [3]) - failing to maintain complete records of all funds and other property 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 (c) (4) (22 NYCRR 1200.46 [c] [4]) - failing to deliver promptly to the client or third person as requested by the client or third person property in the possession of the lawyer that the client or third person is entitled to receive;

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

    DR 9-102 (e) (22 NYCRR 1200.46 [e]) - issuing checks payable to cash rather than to a named payee.

    We have considered the matters submitted by respondent in mitigation, including the fact that respondent suffered from numerous medical problems. We note, however, that respondent has failed to recognize the seriousness of his misconduct and that he previously received a Letter of Admonition. Accordingly, after consideration of all of the factors in this matter, we conclude that respondent should be suspended for one year and until further order of the Court. PRESENT: GREEN, J.P., PINE, SCUDDER, GORSKI, AND HAYES, JJ. (Filed Dec. 30, 2004.)

MATTER OF J. ELDON OWENS, 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 April 8, 1970, and maintains an office for the practice of law in Buffalo. The Grievance Committee filed a petition charging respondent with acts of misconduct arising from his representation of two estates. Respondent filed an answer denying material allegations of the petition and, by order entered March 19, 2004, a referee was assigned to conduct a hearing. Prior to the hearing, the parties executed a stipulation resolving most of the outstanding factual issues. The Referee filed a report, which the Grievance Committee moves to confirm. Respondent filed papers in opposition to the motion, and appeared before this Court and submitted matters in mitigation.The Referee found that respondent, as attorney for an estate, allowed the funds in the estate account to escheat to the State, resulting in a loss of a portion of the funds. Additionally, with respect to another estate represented by respondent, the Referee found that the untimely delivery of completed tax returns by respondent to the executor of the estate resulted in the assessment of penalties and interest against the estate.We confirm the findings of fact made by the Referee and conclude that respondent has 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 6-101 (a) (3) (22 NYCRR 1200.30 [a] [3]) - neglecting a legal matter entrusted to him;

    DR 7-101 (a) (1) (22 NYCRR 1200.32 [a] [1]) - failing to seek the lawful objectives of a client through reasonably available means permitted by law and the Disciplinary Rules;

    DR 7-101 (a) (2) (22 NYCRR 1200.32 [a] [2]) - failing to carry out a contract of employment entered into with a client for professional services; and

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

    We have considered the matters submitted by respondent in mitigation, including that the beneficiaries of the estates incurred no loss as a result of his misconduct. Respondent, however, previously received Letters of Caution based upon similar misconduct. Accordingly, after consideration of all of the factors in this matter, we conclude that respondent should be suspended for a period of six months and until further order of the Court. PRESENT: GREEN, J.P., PINE, SCUDDER, GORSKI, AND HAYES, JJ. (Filed Dec. 30, 2004.)

MATTER OF JOHN GEORGE SIRACUSA, A SUSPENDED ATTORNEY, RESPONDENT. -- Order of disbarment entered. Per Curiam Opinion: Respondent was admitted to the practice of law by the Appellate Division, First Department, on January 26, 1976. On November 14, 2003, respondent was convicted upon his plea of guilty in the United States District Court for the Western District of New York (District Court) of obstruction of justice, in violation of 18 USC § 1503. The plea was entered in satisfaction of a 15-count indictment charging respondent with the commission of various crimes arising from his involvement with a coconspirator in a fraudulent scheme to obtain funds from investors under false pretenses. Respondent, in furtherance of the scheme, used his attorney trust account to divert the funds of investors. Additionally, he admitted during the plea allocution that he produced false documents in response to a grand jury subpoena in a deliberate attempt to mislead the grand jury and obstruct the investigation. This Court determined that obstruction of justice is a serious crime and entered an order on December 11, 2003, suspending respondent and directing him to show cause why a final order of discipline should not be entered pursuant to Judiciary Law § 90 (4) (f) and (g).

    On May 28, 2004, respondent was sentenced in District Court to a term of imprisonment of 39 months, followed by a two-year period of postrelease supervision. Respondent agreed, as a condition of the plea, to the payment of restitution in an amount to be determined by District Court. An amended judgment was subsequently entered directing respondent to make restitution in the total amount of $2,257,180.70.

    Following the imposition of sentence, respondent appeared before this Court in response to the order to show cause and submitted matters in mitigation.

    We have considered the mitigating factors submitted by respondent. This Court has held, however, that when an attorney uses his law license to commit crimes and to aid another in the commission of crimes, the appropriate sanction is disbarment (see Matter of Barbour, 304 AD2d 15; Matter of Bryant, 301 AD2d 285; Matter of Scott, 301 AD2d 166). Accordingly, we conclude that respondent should be disbarred. PRESENT: PIGOTT, JR., P.J., HURLBUTT, KEHOE, MARTOCHE, AND LAWTON, JJ. (Filed Dec. 30, 2004.)

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