MATTER OF NIGEL MUNROE ATWELL, AN ATTORNEY, RESIGNOR. -- Voluntary resignation accepted and name removed from roll of attorneys (see Matter of Manown, 240 AD2d 83). PRESENT: SCUDDER, J.P., GORSKI, GREEN, PINE, AND HAYES, JJ. (Filed May 9, 2006.)

MATTER OF ROBERT N. BAKALIK, A SUSPENDED ATTORNEY, RESPONDENT. GRIEVANCE COMMITTEE OF THE EIGHTH JUDICIAL DISTRICT, PETITIONER. -- Order entered granting motion for default. Same Memorandum as in Matter of Bakalik (___ AD3d ___ [June 9, 2006]). PRESENT: PIGOTT, JR., P.J., HURLBUTT, KEHOE, MARTOCHE, AND SMITH, JJ. (Filed June 9, 2006.)

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MATTER OF LISA L. MITCHELL, 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 March 16, 1995, and maintains an office for the practice of law in Amherst. The Grievance Committee filed a petition charging respondent with misconduct, including conversion, commingling, failure to maintain required bookkeeping records and failure to cooperate with the Grievance Committee. Respondent filed an answer denying material allegations of the petition, and a referee was appointed to conduct a hearing. After the hearing, the Referee submitted a report, which the Grievance Committee moves to confirm. Respondent cross-moves to vacate in part the Referee’s report and to dismiss the first and third charges of the petition.

    The Referee found that, for a two-year period, respondent allowed the balance in her trust account to fall below the amount of her clients’ interests. Additionally, the Referee found that respondent deposited personal funds and fees into the trust account, issued checks drawn against the account made payable to cash and to her mother, and failed to maintain required bookkeeping records and to produce those records at the request of the Grievance Committee. Finally, the Referee found that respondent accepted the sum of $9,000 in cash on behalf of a real estate client and deposited the funds into her trust account. After making certain disbursements related to the real estate transaction, she failed to maintain the balance of the funds in the account, i.e., the sum of $7,350, and, after she was discharged by the client, she failed to return the funds to him. The Referee found that, during the time period in which respondent should have maintained funds in her trust account for that client, she issued a trust account check made payable to cash in order to purchase a house. Respondent testified that the real estate client owed her legal fees in an amount in excess of $5,000 and that she therefore did not owe him the sum of $7,350 at the time that she issued the trust account check for the real estate purchase. The Referee did not credit that testimony, however, and declined to find that the withdrawal of funds was authorized by the client as payment for legal fees. "[W]hen the resolution of issues in a disciplinary proceeding depends upon the credibility of witnesses, a referee’s findings are entitled to great weight" (Matter of Cellino, 21 AD3d 229, 231). Consequently, the Grievance Committee’s motion is granted, and respondent’s cross motion is denied.

    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 her fitness as a lawyer;

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

    DR 9-102 (b) (1) (22 NYCRR 1200.46 [b] [1]) - failing to maintain client funds in a special account separate from her business or personal accounts;

    DR 9-102 (b) (2) (22 NYCRR 1200.46 [b] [2]) - failing to identify special bank accounts in a proper manner;

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

    DR 9-102 (i), (j) (22 NYCRR 1200.46 [i], [j]) - failing to make available to the Grievance Committee financial records required to be maintained by the Disciplinary Rules.

    We have considered, in mitigation, the finding of the Referee that respondent presented uncontroverted evidence regarding her good character and reputation. Additionally, we note that respondent previously had an unblemished record and that respondent has sought the advice of counsel with respect to the rules for trust accounts. 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. Additionally, we direct respondent to make restitution in accordance with the order entered herewith. PRESENT: PIGOTT, JR., P.J., HURLBUTT, KEHOE, MARTOCHE, AND SMITH, JJ. (Filed June 9, 2006.)

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MATTER OF WAYNE I. OHL, AN ATTORNEY, RESPONDENT. GRIEVANCE COMMITTEE OF THE SEVENTH JUDICIAL DISTRICT, PETITIONER. -- Order of censure entered. Per Curiam Opinion: Respondent was admitted to the practice of law by this Court on February 20, 1974, and maintains offices for the practice of law in the Town of Mendon and the Hamlet of Honeoye. The Grievance Committee filed a petition charging respondent with misconduct, including failure to separate and identify funds and failure to comply with the procedures for attorneys in Domestic Relations matters. Respondent filed an answer denying material allegations of the petition, and a referee was appointed to conduct a hearing. After the hearing, the Referee submitted a report, which the Grievance Committee moves to confirm.

    The evidence before the Referee established that respondent ceased using an IOLA account as an attorney trust account and began using it as a personal account. He used the account for business as well as personal expenses and failed to change the name of the account or notify the bank or the IOLA Fund of the changed nature of the account. Respondent failed to maintain records of account activity, with the exception of copies of unnegotiated checks, and therefore was unable to produce such records when they were requested by the Grievance Committee. Additionally, the evidence established that in domestic relations matters, respondent used a written retainer agreement that did not comply with applicable rules and failed to provide the requisite billing statements to his clients at least every 60 days.

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

    DR 2-106 (c) (2) (ii) (22 NYCRR 1200.11 [c] [2] [ii]) - entering into an arrangement for, charging or collecting a fee in a domestic relations matter without a written retainer agreement signed by the lawyer and client setting forth in plain language the nature of the relationship and the details of the fee arrangement;

    DR 2-106 (c) (3) (22 NYCRR 1200.11 [c] [3]) - entering into an arrangement for, charging or collecting a fee that is proscribed by law or rule of court;

    DR 2-110 (a) (3) (22 NYCRR 1200.15 [a] [3]) - withdrawing from employment without refunding promptly any part of a fee paid in advance that has not been earned;

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

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

    DR 9-102 (i), (j) (22 NYCRR 1200.46 [i], [j]) - failing to make available to the Grievance Committee financial records required to be maintained by the Disciplinary Rules.

    We note that respondent’s disciplinary history includes a previous order of censure (Matter of Ohl, 223 AD2d 307). We have considered in mitigation, however, that respondent did not convert funds or commingle personal funds with client funds. He performed the work for which his clients retained him, and no client was harmed as a result of his misconduct. Respondent has expressed remorse for his misconduct, has revised his retainer agreement to comply with 22 NYCRR 1400.3, and is now providing billing statements to his clients at regular intervals. Additionally, we note that respondent has suffered from clinical depression and gastrointestinal problems since 1996 as a result of a surgical procedure. Accordingly, after consideration of all of the factors in this matter, we conclude that respondent should be censured. PRESENT: SCUDDER, J.P., GORSKI, GREEN, PINE, AND HAYES, JJ. (Filed June 9, 2006.)

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MATTER OF STEPHEN D. ROGOFF, AN ATTORNEY, RESPONDENT. GRIEVANCE COMMITTEE OF THE SEVENTH JUDICIAL DISTRICT, PETITIONER. -- Order of censure entered. Per Curiam Opinion: Respondent was admitted to the practice of law by this Court on February 16, 1972, and maintains an office for the practice of law in Rochester. The Grievance Committee filed a petition charging respondent with misconduct arising from his representation of both the sellers and the buyer in a real estate transaction. Respondent filed an answer denying material allegations of the petition, and a referee was appointed to conduct a hearing. After the hearing, the Referee submitted a report, which the Grievance Committee and respondent each move to confirm.

    The uncontroverted evidence before the Referee established that respondent improperly represented both the sellers and the buyer in the sale of a motel property and that respondent failed to make appropriate disclosures to either the sellers or the buyer concerning the dual representation.

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

    DR 5-105 (a) (22 NYCRR 1200.24 [a]) - failing to decline proffered employment if the exercise of his independent professional judgment on behalf of the client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve him in representing differing interests, and a disinterested lawyer would not believe that he could competently represent the interest of each client and each client did not consent to the representation after full disclosure of the implications of the simultaneous representation and the advantages and risks involved; and

    DR 5-105 (b) (22 NYCRR 1200.24 [b]) - continuing multiple employment if the exercise of his independent professional judgment on behalf of a client will be or is likely to be adversely affected by his representation of another client or if it would be likely to involve him in representing differing interests, and a disinterested lawyer would not believe that he could competently represent the interest of each client and each client did not consent to the representation after full disclosure of the implications of the simultaneous representation and the advantages and risks involved.

    We have considered the matters submitted by respondent in mitigation, including that respondent undertook the dual representation at the insistence of the buyer, had no financial interest in the transaction and charged the sellers and the buyer one half of his usual fee. Additionally, we note that respondent cooperated with the Grievance Committee and has expressed remorse for his misconduct. Respondent, however, has previously received a letter of admonition for entering into a business transaction with a client without full disclosure, and, letters of caution for conduct that included engaging in representation involving conflicts of interest. 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 SMITH, JJ. (Filed June 9, 2006.)

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