MATTER OF DAVID P. ANTONUCCI, 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 January 14, 1988, and maintains an office for the practice of law in Watertown. The Grievance Committee filed a petition charging respondent with misconduct arising from his representation of a creditor in the United States Bankruptcy Court for the Northern District of New York (Bankruptcy Court). Respondent filed an answer admitting the factual allegations of the petition and disputing the conclusions that his conduct violated the Disciplinary Rules. Respondent appeared before this Court and submitted matters in mitigation.

    Respondent commenced three proceedings in Bankruptcy Court on behalf of a creditor seeking to deny bankruptcy protection for debts owed to the creditor. Respondent was sanctioned in one of the proceedings on the ground that the proceeding was frivolous and, in another proceeding, the Bankruptcy Court found that, although the proceeding was meritless, sanctions were not warranted. Finally, in the third proceeding, the Bankruptcy Court found that the conduct of respondent in reaching a settlement and obtaining a judgment against the debtor without notice to the bankruptcy trustee caused the debtor to incur additional expense. The Bankruptcy Court further found, however, that respondent did not act with the intent to deceive the Court.

    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 7-102 (a) (1) (22 NYCRR 1200.33 [a] [1]) - filing a suit or asserting a position on behalf of a client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another; and

    DR 7-102 (a) (2) (22 NYCRR 1200.33 [a] [2]) - knowingly advancing a claim that is unwarranted under existing law that cannot be supported by good faith argument for an extension, modification or reversal of existing law.

    We have considered the matters submitted by respondent in mitigation, including that he was sanctioned in only one of the three proceedings and that the Bankruptcy Court termed his conduct uncharacteristic. We have also considered respondent’s expression of remorse. Accordingly, after consideration of all of the factors in this matter, we conclude that respondent should be censured. PRESENT: SCUDDER, J.P., GORSKI, GREEN, AND PINE, JJ. (Filed Sept. 29, 2006.)

MATTER OF M. HELENE HAMLIN, AN ATTORNEY, RESPONDENT. GRIEVANCE COMMITTEE OF THE FIFTH JUDICIAL DISTRICT, PETITIONER. (PROCEEDING NO. 2.) -- Order entered accepting resignation, striking name from roll of attorneys and directing payment of restitution. Per Curiam Opinion: Respondent was admitted to the practice of law by this Court on February 17, 1984, and, during the time periods relevant to the two proceedings at issue herein, maintained offices for the practice of law in Utica and Ilion. The Grievance Committee filed a petition charging respondent with acts of misconduct arising from her representation of a client who required estate and Medicaid planning services. 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 parties appeared before this Court for argument of the motion, and respondent submitted matters in mitigation.

    During the pendency of the first proceeding, the Grievance Committee filed a second petition charging respondent with acts of misconduct arising from her representation of a client in an unrelated matter. Respondent filed an answer denying material allegations of the petition and a different referee was appointed to conduct a hearing. Prior to the hearing, however, respondent submitted a proposed resignation from the practice of law in which she admitted the allegations of the second petition.

    Respondent has admitted in her affidavit of resignation that, in her capacity as trustee for several trusts, she misappropriated trust funds, failed to preserve the principal and engaged in other acts of misconduct. Additionally, respondent states in her affidavit that the resignation is voluntarily submitted and that she has no defense to the charges. She consents to the entry of an order directing the payment of restitution in that proceeding.

    The resignation of respondent complies with Rules of the Appellate Division, Fourth Department (22 NYCRR) § 1022.26 (a). We accept the resignation, strike respondent’s name from the roll of attorneys and direct respondent to make restitution pursuant to the order entered herewith.

    With respect to the charges in the first petition, the Referee found, inter alia, that respondent had been paid a fixed fee in advance for estate and Medicaid planning. In a Medicaid application filed on behalf of her client with the Department of Social Services (DSS), respondent listed and deducted her legal fee. After DSS questioned the legitimacy of her fee, respondent made substantial reimbursement to the client of legal fees as well as fees paid by the client for other professional services. The Referee found that the legal fee charged and collected by respondent for Medicaid planning exceeded the customary fee charged in that locality for similar legal services and that respondent had not presented proof that the legal work that she had performed was novel or difficult, that she was precluded from accepting other employment by virtue of her representation of the client, that special time constraints were involved in the representation or that she had a reputation for or possessed extraordinary ability in that type of matter.

    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; and

    DR 2-106 (a) (22 NYCRR 1200.11 [a]) - entering into an agreement for, charging or collecting an excessive fee.

    In view of our determination accepting respondent’s resignation submitted in satisfaction of the second petition, no sanction need be imposed for the misconduct at issue in the first petition. PRESENT: SCUDDER, J.P., GORSKI, GREEN, AND PINE, JJ. (Filed Sept. 29, 2006.)

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