Decisions in
Attorney Disciplinary Matters
July 7, 2006
Disciplinary Matters
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Attorney |
Docket No. |
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M-04-002 |
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P-06-061 |
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P-06-027 |
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P-06-018 |
Disciplinary Matters
MATTER OF TIMOTHY G. BAX, A SUSPENDED ATTORNEY, RESPONDENT. GRIEVANCE COMMITTEE OF THE EIGHTH JUDICIAL DISTRICT, PETITIONER. -- Final order of suspension entered. Per Curiam Opinion: Respondent was admitted to the practice of law by this Court on February 22, 1985, and formerly maintained an office for the practice of law in Niagara Falls. By order entered March 3, 2004, this Court granted the motion of the Grievance Committee pursuant to 22 NYCRR 1022.20 (e) to suspend respondent as an immediate threat to the public interest on the ground that there was uncontroverted evidence that he had converted clients’ funds to support his addiction to heroin. The Grievance Committee thereafter filed a petition charging respondent with acts of misconduct, including conversion of client funds, engaging in illegal conduct and neglect of client matters. Respondent filed an answer, declining to admit or deny the allegations of the petition and invoking his Fifth Amendment right against self-incrimination. A referee was appointed to conduct a hearing. Prior to the hearing, the parties entered into a stipulation resolving outstanding issues of fact. The Referee filed a report adopting the facts in the stipulation as his findings of fact, and the Grievance Committee moves to confirm the Referee’s report.
The stipulated facts establish that, in order to support his addiction to heroin, respondent converted client funds, wrongfully withheld a realtor’s commission, and accepted fees from clients for whom he performed no work. In addition, two checks drawn on respondent’s attorney trust account were dishonored for insufficient funds. When asked for a written explanation, respondent provided to the Grievance Committee a letter, purportedly from a bank vice president, stating that there had been a bank error. In fact, respondent had fabricated the letter. Additionally, respondent was unable to comply with the Grievance Committee’s request for his trust account records because he had not kept records. Finally, respondent failed to reregister as an attorney and failed to pay his biennial fee for the years 2003 and 2004.
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 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) (2) (22 NYCRR 1200.32 [a] [2]) - intentionally failing to carry out a contract of employment entered into with a client for professional services;
DR 9-102 (a) (22 NYCRR 1200.46 [a]) - misappropriating client funds;
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.
In addition, respondent violated Judiciary Law § 468-a and 22 NYCRR 118.1 by failing to reregister as an attorney and to pay his biennial fee for the years 2003 and 2004.
We have considered in mitigation that respondent’s misconduct occurred while respondent was addicted to heroin. Prior to that addiction, respondent was a successful attorney and a respected member of the community, and he has been drug and alcohol free for nearly three years. Respondent has expressed remorse for his misconduct, and he has made full restitution. Accordingly, after consideration of all of the factors in this matter, we conclude that respondent should be suspended for a period of two years, effective immediately, and until further order of the Court. PRESENT: PIGOTT, JR., P.J., HURLBUTT, KEHOE, AND SMITH, JJ. (Filed July 7, 2006.)
MATTER OF CURTIS W. LEE, AN ATTORNEY, RESPONDENT. GRIEVANCE COMMITTEE OF THE EIGHTH JUDICIAL DISTRICT, PETITIONER. -- Order of censure entered. Per Curiam Opinion: Respondent was admitted to the practice of law by this Court on February 18, 1981, and was formerly employed as a staff attorney for National Fuel Gas Company (NFG). The Grievance Committee filed an amended petition charging respondent with acts of misconduct, including engaging in illegal conduct, arising from his conduct as a pro se litigant in an action commenced against him by NFG. Respondent filed an answer admitting the factual allegations of the petition.
Respondent has admitted that, following the termination of his employment with NFG and in violation of court orders obtained by NFG, he disclosed to news media, directors and officers of various governmental agencies and law enforcement agencies certain confidences and secrets learned during the course of his employment. He has further admitted that, notwithstanding an order of Supreme Court holding him in civil contempt of court for those improper disclosures, he continued to make disclosures of confidential information of NFG, resulting in an order of Supreme Court holding respondent in civil and criminal contempt. In the two contempt proceedings, Supreme Court found that respondent had violated prior court orders a total of 83 times; the findings of civil and criminal contempt were upheld on appeal by this Court (Data-Track Account Servs., Inc. v Lee, 17 AD3d 1115, lv dismissed 5 NY3d 849; Data-Track Account Servs. v Lee, 291 AD2d 827, lv dismissed 98 NY2d 727, rearg denied 99 NY2d 532).
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) (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 4-101 (b) (1) (22 NYCRR 1200.19 [b] [1]) - knowingly revealing a confidence or secret of a client;
DR 4-101 (b) (2) (22 NYCRR 1200.19 [b] [2]) - knowingly using a confidence or secret of a client to the disadvantage of the client; and
DR 7-106 (a) (22 NYCRR 1200.37 [a]) - disregarding a ruling of a tribunal made in the course of a proceeding.
We have considered the mitigating factors submitted by respondent, including that he is in failing health and that he has retired from the practice of law. Additionally, we have considered that the improper disclosures by respondent occurred in the context of civil litigation commenced by his former employer in which he was a pro se litigant. Finally, we note that respondent had a sincere, although misguided, belief that the disclosures were necessary and appropriate, and he has already incurred fines and sanctions in excess of $500,000. 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 July 7, 2006.)
MATTER OF ALAN M. ST. CLAIR, A SUSPENDED ATTORNEY, RESPONDENT. GRIEVANCE COMMITTEE OF THE EIGHTH JUDICIAL DISTRICT, PETITIONER. -- Final order of suspension entered. Per Curiam Opinion: Respondent was admitted to the practice of law by this Court on March 3, 2005. He was arrested on August 30, 2005, and charged with possessing a sexual performance by a child (Penal Law § 263.16), a class E felony. On October 12, 2005, respondent pleaded guilty in Buffalo City Court to attempting to possess a sexual performance by a child (§§ 110.00, 263.16), a class A misdemeanor, in satisfaction of the felony charge. This Court, by order entered January 18, 2006, granted the motion of the Grievance Committee pursuant to 22 NYCRR 1022.20 (e) seeking to suspend respondent on the ground that his conviction constituted uncontroverted evidence that he had committed misconduct immediately threatening the public interest. On March 6, 2006, respondent was sentenced to a six-year term of probation. He has been adjudicated a level one risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.) and is required to register as a sex offender for a period of 20 years.
The Grievance Committee filed a petition charging respondent with violations of the Disciplinary Rules of the Code of Professional Responsibility based upon the misconduct underlying his criminal conviction. Respondent filed an answer admitting the material allegations of the petition and appeared before this Court and submitted matters in mitigation.
The admitted facts establish that the attempted transmission by respondent of an image depicting child pornography on his personal computer was detected and blocked by an internet service provider. The State Police commenced an investigation upon receipt of a report generated by the internet service provider and, in connection with the investigation, two State Police investigators conducted an interview with respondent at his residence. Respondent initially denied the allegations and refused to consent to a search of his computer. One investigator left to obtain a warrant, and the other remained at respondent’s residence. The remaining investigator observed respondent secrete the computer in a bag, remove it from the residence and attempt to place it into his automobile. Upon being advised by the investigator that the warrant application would be amended to include his vehicle, respondent consented to the search of the computer. Forensic analysis of respondent’s computer revealed more than 150 images and 12 digital videos depicting sexual conduct by a child less than 16 years of age. Additionally, the forensic analysis indicated that, on the date on which respondent was interviewed by the investigators, he had attempted to delete images from the computer.
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; and
DR 1-102 (a) (7) (22 NYCRR 1200.3 [a] [7]) - engaging in conduct that adversely reflects on his fitness as a lawyer.
We have considered the matters submitted by respondent in mitigation, including the conclusions of a recognized medical expert that respondent is not a pedophile, poses no danger to children and possesses none of the factors that demonstrate a likelihood of recidivism. Respondent, however, has committed serious misconduct. He possessed and attempted to transfer graphic images depicting child pornography, and he attempted to conceal and destroy evidence when confronted by State Police investigators. Accordingly, after consideration of all of the factors in this matter, we conclude that respondent should be suspended for three years, effective January 18, 2006, and until further order of the Court. PRESENT: PRESENT: PIGOTT, JR., P.J., HURLBUTT, KEHOE, MARTOCHE, AND SMITH, JJ. (Filed July 7, 2006.)
MATTER OF JOHN B. ZANKOWSKI, AN ATTORNEY, RESPONDENT. GRIEVANCE COMMITTEE OF THE SEVENTH JUDICIAL DISTRICT, PETITIONER. -- Order of suspension entered. PRESENT: SCUDDER, J.P., GORSKI, GREEN, PINE, AND HAYES, JJ. (Filed June 26, 2006.)