MATTER OF MICHAEL JOHN COLITZ, JR., AN ATTORNEY, RESPONDENT. GRIEVANCE COMMITTEE OF THE SEVENTH JUDICIAL DISTRICT, PETITIONER. -- Order of suspension entered. Per Curiam Opinion: Respondent was admitted to the practice of law by this Court on April 5, 1967. By order entered January 20, 2005, respondent was suspended by the Supreme Court of Florida for a period of three years, effective June 6, 2003, for violating regulations of the United States Patent and Trademark Office (USPTO). That office had suspended respondent on December 2, 2002, for a period of five years, with two years of the period to be stayed, for misconduct that included aiding non-practitioners in the unauthorized practice of law. Thereafter, the Supreme Court of Ohio, pursuant to the reciprocal discipline provisions of its rules, imposed upon respondent a period of suspension to run concurrently with that imposed by the USPTO.

    This Court, upon receipt of certified copies of the orders entered in Florida and Ohio, directed respondent, by order entered September 15, 2005, to show cause why reciprocal discipline should not be imposed pursuant to 22 NYCRR 1022.22. Respondent filed papers in response to the order, contending that the imposition of reciprocal discipline in the circumstances of this case would be unjust.

    Pursuant to 22 NYCRR 1022.22, an attorney disciplined in another jurisdiction may be disciplined by this Court for the underlying misconduct unless we find that the procedure in the foreign jurisdiction deprived the attorney of due process of law, that there was insufficient proof that the attorney committed the misconduct or that the imposition of discipline would be unjust. Respondent does not contend that he was deprived of due process in the proceedings in Florida or Ohio, nor does he contend that there was insufficient proof before the USPTO that he committed the misconduct. We disagree with respondent that the imposition of a period of suspension by this Court would be unjust. Accordingly, after consideration of all of the factors in this matter, we conclude that respondent should be immediately suspended, without leave to apply for reinstatement until June 6, 2006, or, until such time as he has been reinstated by the USPTO, whichever is later. PRESENT: GREEN, J.P., SCUDDER, GORSKI, PINE, AND HAYES, JJ. (Filed Nov. 10, 2005.)

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MATTER OF DAVID DALE, 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 January 14, 1988, 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 activities as executor of and attorney for an estate. 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 cross-moves, inter alia, to vacate the Referee’s report and dismiss the petition.

    The Referee found that respondent had neglected the estate by failing to file a timely probate petition and timely estate tax returns; failing to open an estate checking account in a timely manner; failing to file fiduciary income tax returns; failing to convert the personal assets of the decedent in a timely manner; redeeming savings bonds without proper consideration of the tax consequences; failing to file the attorney’s affidavit required by 22 NYCRR 207.45 (a); and failing to respond to inquiries from the estate’s beneficiaries and their attorneys. The Referee found that the failure of respondent to convert the personal assets of the decedent in a timely manner resulted in a significant diminution of the value of the assets and that his failure to file timely estate tax returns resulted in penalties in excess of $110,000, as well as interest. The Referee further found that respondent, in his testimony before a referee appointed by Surrogate’s Court and in an examination under oath conducted by the Grievance Committee during the investigation, falsely stated that he had timely filed estate tax returns. Finally, the Referee found that respondent made misrepresentations to Surrogate’s Court and to the successor executor concerning the filing.

    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) (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 reflects adversely 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 7-102 (a) (5) (22 NYCRR 1200.33 [a] [5]) - knowingly making a false statement of law or fact in the representation of a client.

    Respondent has committed egregious misconduct. Additionally, we have considered the failure of respondent to acknowledge the commission of any misconduct, and that he has previously received a letter of admonition and a letter of caution. Accordingly, after consideration of all of the factors in this matter, we conclude that respondent should be disbarred. PRESENT: PIGOTT, JR., P.J., HURLBUTT, KEHOE, MARTOCHE AND LAWTON, JJ. (Filed Nov. 10, 2005.)

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MATTER OF FRANCES J. FOOTE, A SUSPENDED 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 25, 1992, and formerly maintained an office for the practice of law in Buffalo. The Grievance Committee filed a petition charging respondent with acts of professional misconduct including neglecting client matters and failing to carry out contracts of legal employment. Respondent failed to file a timely answer as directed by this Court and, by order entered May 26, 2004, she was suspended until further order of the Court. Respondent thereafter filed an answer denying certain 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 testified at the hearing with regard to matters in mitigation. The Referee filed a report, which the Grievance Committee moves to confirm. Respondent failed to respond to the motion or to appear before this Court on the return date.

    The Referee found that respondent accepted retainer fees from two matrimonial clients and relocated to another state, abandoning the clients who had unresolved matters. Additionally, respondent used an account that was designated as a trust account as her personal account, and failed to use the account for client funds. Finally, respondent failed for two biennial periods to register as an attorney and pay required fees.

    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 her fitness as a lawyer;

    DR 2-110 (a) (2) (22 NYCRR 1200.15 [a] [2]) - withdrawing from employment without taking steps to the extent reasonably practicable to avoid foreseeable prejudice to the rights of the client;

    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 her;

    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 9-102 (b) (2) (22 NYCRR 1200.46 [b] [2]) - failing to identify her trust account in a proper manner.

    We have considered the character references submitted by respondent in mitigation, and the fact that she has a previously unblemished record. Respondent, however, has made no effort to reimburse her clients for the fees that she did not earn and she did not appear before this Court or file any papers in response to the Grievance Committee’s motion to confirm the report of the Referee. 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: PIGOTT, JR., P.J., HURLBUTT, KEHOE, MARTOCHE, AND LAWTON, JJ. (Filed Nov. 10, 2005.)

MATTER OF RENE F. HENSEL, AN ATTORNEY, RESPONDENT. GRIEVANCE COMMITTEE OF THE SEVENTH JUDICIAL DISTRICT, PETITIONER. -- Order of suspension entered. PRESENT: GREEN, J.P., SCUDDER, GORSKI, PINE, AND HAYES, JJ. (Filed Nov. 1, 2005.)

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MATTER OF KAREN E. MEINZER, A SUSPENDED ATTORNEY, RESPONDENT. GRIEVANCE COMMITTEE OF THE EIGHTH JUDICIAL DISTRICT, PETITIONER. -- Order of disbarment entered. Memorandum: Respondent’s unexcused failure to appear or answer the petition constitutes a default (see Matter of Wedlock, 230 AD2d 422; see also Matter of Frank, 9 AD3d 916; Matter of Cary, 7 AD3d 24; Matter of Gaesser, 6 AD3d 1246). PRESENT: GREEN, J.P., SCUDDER, GORSKI, PINE, AND HAYES, JJ. (Filed Nov. 10, 2005.)

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MATTER OF KAREN E. MEINZER, A SUSPENDED ATTORNEY, RESPONDENT. GRIEVANCE COMMITTEE OF THE EIGHTH JUDICIAL DISTRICT, PETITIONER. -- Order entered granting motion for default. Same Memorandum as in Matter of Karen E. Meinzer (___ AD3d ___ [Nov. 10, 2005]). PRESENT: GREEN, J.P., SCUDDER, GORSKI, PINE, AND HAYES, JJ. (Filed Nov. 10, 2005.)

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MATTER OF PETER J. OSREDKAR, A SUSPENDED ATTORNEY, RESPONDENT. GRIEVANCE COMMITTEE OF THE SEVENTH JUDICIAL DISTRICT, PETITIONER. -- Order of disbarment entered. Per Curiam Opinion: Respondent was admitted to the practice of law by the Third Department on June 20, 2000, and was formerly engaged in the practice of law in Syracuse. Respondent currently resides in Oregon. The Grievance Committee (petitioner) filed a petition charging respondent with, inter alia, making materially false statements in his application for admission to the New York State bar and with omitting material facts from his application. Respondent filed an answer denying material allegations of the petition, and a referee was appointed to conduct a hearing. Prior to the hearing, petitioner filed a motion in this Court to suspend respondent as an immediate threat to the public interest on the ground that he had filed an application for admission in the State of Washington that contained false statements, and, that he had failed to disclose in that application the pendency of this proceeding. Respondent failed to respond to the motion and did not appear before this Court on the return date. This Court granted the motion of petitioner and, by order entered July 1, 2005, respondent was suspended until further order of the Court.   

    Respondent did not participate in a prehearing conference and did not appear at the scheduled hearing. The Referee filed a report based upon exhibits received in evidence on behalf of petitioner and documents that had previously been submitted by respondent.

    Petitioner moves to confirm the report of the Referee and seeks an order, pursuant to Judiciary Law § 90 (2), revoking respondent’s license to practice law. Respondent did not respond to the motion or appear before this Court on the return date. He filed a proposed resignation from practice, which was rejected for failure to comply with 22 NYCRR 1022.27.

    The Referee found that respondent, in his application for admission to the bar, failed to disclose certain legal employment, a material fact requested in the application. In addition, the Referee found that, prior and subsequent to his admission, respondent made false and misleading statements regarding his employment history in resumés provided to employment agencies. The Referee also found that respondent, following his admission to the bar, fabricated letters of recommendation and falsified his law school transcript. Additionally, the Referee found that respondent made false statements during the investigation conducted by petitioner and during this proceeding, including a claim that one of the letters of recommendation in issue had been fabricated by his 13-year-old daughter.

    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 1-101 (a) (22 NYCRR 1200.2 [a]) - making materially false statements in or deliberately failing to disclose a material fact in connection with an application for admission to the bar;

    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; and

    DR 1-102 (a) (7) (22 NYCRR 1200.3 [a] [7]) - engaging in conduct that adversely reflects on his fitness to practice law.

    We decline to adopt the Referee’s conclusions that respondent violated the Disciplinary Rules when, during the pendency of the proceeding, he sent to the Referee and to counsel for petitioner certain e-mail communications, and, when he made a false statement in an application for legal employment. Respondent was not formally charged with that misconduct and, consequently, we decline to consider it. We also decline to adopt the conclusion of the Referee that the conduct of respondent in describing himself in a resumé as an "associate" with a firm in a jurisdiction in which he was not admitted to practice constituted practicing law in that jurisdiction, in violation of DR 3-101 (b) (22 NYCRR 1200.16 [b]).

    We note, in determining an appropriate sanction, the finding of the Referee that there are no mitigating factors in this matter. We have also considered certain aggravating factors found by the Referee, including the false statements made by respondent during the investigation and proceeding and his conduct toward the Referee and counsel for petitioner. Additionally, we note the failure of respondent to controvert the allegations made by petitioner regarding his attempt to gain admission to the bar in another jurisdiction without disclosing the pendency of this proceeding.

    Petitioner correctly notes that this Court is authorized to revoke respondent’s license to practice law for his conduct in omitting from his application for admission a material fact (see Judiciary Law § 90 [2]; see also Matter of Canino, 10 AD3d 194, 196). We conclude, however, that respondent has amply demonstrated that he lacks the requisite character and fitness to practice law. Consequently, we decline to revoke his admission and place him in the position that he was in at the time of his original application for admission (see Canino, 10 AD3d at 196). Accordingly, we conclude that respondent should be disbarred. PRESENT: PIGOTT, JR., P.J., HURLBUTT, KEHOE, MARTOCHE, AND LAWTON, JJ. (Filed Nov. 10, 2005.)

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MATTER OF EDWARD S. REICH, AN ATTORNEY, RESPONDENT. -- Order of suspension entered pursuant to Judiciary Law § 90 (4) (f) and (g). PRESENT: GREEN, J.P., SCUDDER, GORSKI, PINE, AND HAYES, JJ. (Filed Oct. 31, 2005.)

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MATTER OF DAVID R. WENDT, A SUSPENDED 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 Nov. 10, 2005.)

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