Decisions in
Attorney Disciplinary Matters
March 16, 2007
Disciplinary Matters
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Attorney |
Docket No. |
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M-06-060 |
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P-07-092 |
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P-06-085 |
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P-06-003 |
MATTER OF ADAM H. BERNSTEIN, A DISBARRED ATTORNEY, RESPONDENT. GRIEVANCE COMMITTEE OF THE SEVENTH JUDICIAL DISTRICT, PETITIONER. -- Order of contempt entered. Per Curiam Opinion: Respondent was admitted to the practice of law by the Appellate Division, Third Department, on February 11, 1977. He was suspended by order of this Court entered January 22, 1988, pending the determination of a disciplinary proceeding. By order entered April 21, 1988, respondent was disbarred upon his conviction of grand larceny in the third degree (Penal Law § 155.35), a class D felony. Respondent was personally served on April 22, 1988 with a certified copy of the disbarment order and a copy of this Court’s rule governing the conduct of disbarred attorneys. On October 5, 2006, respondent was personally served with a motion for contempt. The motion was based in part upon allegations that respondent had appeared in Wayne County Surrogate’s Court, held himself out as an attorney, and joined in an application made by an admitted attorney for respondent’s admission pro hac vice without disclosing to the Surrogate that respondent was a disbarred attorney. Respondent filed a motion to dismiss in which he asserted that his appearance before the Surrogate did not constitute engaging in the practice of law.
The transcript of the proceeding before the Surrogate establishes that, in response to the oral application for respondent’s admission pro hac vice, in which it was represented that respondent was admitted to practice in other states "but not here in New York," respondent replied that he was familiar with the file, had conducted an interview of the client and would be "grateful for the Court’s indulgence." It is undisputed that respondent did not advise the Surrogate at the time of the application, or during a conference conducted in chambers immediately thereafter, that he was a disbarred attorney.
Respondent, by joining in the application for his admission pro hac vice and failing to inform the Surrogate that he was disbarred and not eligible to practice law, held himself out as an attorney in violation of this Court’s order of disbarment.
As we have previously held, the conduct of a disbarred attorney in holding oneself out as an attorney constitutes criminal contempt of court in violation of Judiciary Law § 750 (A) (3) (see Matter of Marino, 303 AD2d 10; Matter of Michalek, 180 AD2d 67). Accordingly, we grant the motion for contempt and impose a fine in the amount of $500.00. We direct respondent to pay the fine within 30 days of service of the order entered herewith. PRESENT: HURLBUTT, J.P., MARTOCHE, SMITH, AND CENTRA, JJ. (Filed Mar. 16, 2007.)
MATTER OF ANONYMOUS, AN APPLICANT FOR ADMISSION TO THE BAR OF THE STATE OF NEW YORK, PETITIONER. -- Order entered denying petition. Per Curiam Opinion: Petitioner seeks an order pursuant to 22 NYCRR 1022.34 (m) granting his application for admission to practice notwithstanding the adverse decision of the Committee on Character and Fitness for the Seventh Judicial District (Committee). The Committee filed a decision in February 2005 declining to certify petitioner for admission based upon a determination made after a hearing that petitioner lacked candor. The Committee found that petitioner had failed to disclose his complete criminal history in his application for admission, in interviews with Committee members and in an application for legal employment, and, that petitioner had made false statements concerning his credentials in an employment application. Additionally, the Committee noted that, because petitioner was not forthcoming with information requested by it, the Committee was required to obtain the information directly through releases obtained from petitioner. Finally, the Committee found that petitioner was untruthful and evasive when he testified at the hearing.
Petitioner submitted in support of his petition for admission notwithstanding the adverse decision that his omissions, incomplete and untruthful responses and evasiveness occurred during a period of time when he was in denial of his alcoholism, which according to petitioner was diagnosed in January 2001.
We reserved decision on the petition and remitted the matter for a hearing on the issues raised therein.
The Committee convened a subcommittee to conduct a hearing. The subcommittee filed a report declining to certify petitioner for admission on the ground that he had failed to establish a causal connection between his alcoholism and his "repeated and chronic pattern of dishonesty, misrepresentations and exaggeration of credentials." The Committee unanimously adopted the recommendation of the subcommittee.
We perceive no basis in this record to disturb the decision of the Committee declining to certify petitioner for admission. The Committee conducted a careful and thorough investigation of petitioner, and we agree with its conclusion that petitioner lacks candor and does not possess the requisite character and fitness to practice law (see Matter of Kantor, 283 AD2d 882; Matter of Mendoza, 167 AD2d 658). Accordingly, we conclude that the petition should be denied. PRESENT: GORSKI, J.P., LUNN, FAHEY, GREEN, AND PINE, JJ. (Filed Mar. 16, 2007.)
MATTER OF STANISLAW F. MROCZKA, AN ATTORNEY, RESPONDENT. GRIEVANCE COMMITTEE OF THE EIGHTH JUDICIAL DISTRICT, PETITIONER. -- Order of suspension entered. PRESENT: SCUDDER, P.J., GORSKI, GREEN, AND PINE, JJ. (Filed Feb. 27, 2007.)
MATTER OF CHRISTOPHER J. ZITO, A SUSPENDED ATTORNEY, RESPONDENT. GRIEVANCE COMMITTEE OF THE FIFTH JUDICIAL DISTRICT, PETITIONER. -- Final order of suspension entered. Per Curiam Opinion: Respondent was admitted to the practice of law by the Appellate Division, Second Department, on May 6, 1981, and formerly maintained an office for the practice of law in Frankfort. On June 9, 2005, respondent was convicted upon his plea of guilty in Herkimer County Court of petit larceny (Penal Law § 155.25), a serious crime pursuant to Judiciary Law § 90 (4) (d). Respondent was sentenced to a one-year conditional discharge. By order entered July 1, 2005, this Court suspended respondent from the practice of law until further order of the Court for his conviction of a serious crime. Prior to the entry of a final order in that matter, however, the Grievance Committee filed a petition charging respondent with acts of misconduct based upon the facts underlying his plea of guilty in County Court and with other acts of misconduct. Respondent filed an answer denying material allegations of the petition, and a referee was appointed to conduct a hearing. The Referee has submitted a report, which the Grievance Committee has moved to confirm.
The Referee found that respondent delegated responsibility for his trust account to his secretary, gave her permission to sign checks, and directed her to pay his personal bills from the account. The secretary issued checks from the trust account in payment of respondent’s personal obligations and her own and issued checks from the trust account payable to cash. The Referee further found that respondent allowed the balance in the trust account to fall below the amount that should have been maintained on behalf of his clients, agreed to represent the buyers and sellers in a real estate transaction without making appropriate disclosures regarding the implications of the simultaneous representation, and failed to disburse proceeds due to the sellers and funds due for title insurance and abstract fees. Additionally, the Referee found that respondent borrowed funds from a client without making appropriate disclosures regarding the potential conflict of interest or obtaining the consent of the client, and failed to pay to that client an insurance refund that respondent had accepted on the client’s behalf. Finally, the Referee found that respondent failed to complete matters on behalf of clients and failed to comply with attorney registration requirements.
We confirm the Referee’s findings of fact 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) (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 1-104 (c) (22 NYCRR 1200.5 [c]) - failing to supervise adequately the work of a nonlawyer employee;
DR 1-104 (d) (22 NYCRR 1200.5 [d]) - directing the misconduct of a nonlawyer employee;
DR 2-110 (a) (3) (22 NYCRR 1200.15 [a] [3]) - failing to refund promptly any part of a fee paid in advance that has not been earned;
DR 5-104 (a) (22 NYCRR 1200.23 [a]) - entering into a business transaction with a client if they have differing interests therein and if the client expects him to exercise professional judgment therein for the protection of the client without disclosing the terms of the transaction to the client in writing and obtaining the consent of the client in writing to those terms and to his inherent conflict of interest in the transaction;
DR 5-105 (a) (22 NYCRR 1200.24 [a]) - failing to decline proffered employment if the exercise of independent professional judgment on behalf of a 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 or she 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;
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]) - 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 his business or personal accounts;
DR 9-102 (c) (3) (22 NYCRR 1200.46 [c] [3]) - failing to maintain complete records of all funds, securities and other properties of a client or third person coming into his possession and to render appropriate accounts to the client or third person regarding them;
DR 9-102 (c) (4) (22 NYCRR 1200.46 [c] [4]) - failing to pay or deliver promptly to the client or third person as requested by the client or third person the funds, securities or other properties in his possession that the client or third person is entitled to receive; and
DR 9-102 (e) (22 NYCRR 1200.46 [e]) - making withdrawals from a special account payable to cash and not to a named payee and allowing a nonlawyer to be an authorized signatory of a special account.
Additionally, respondent violated Judiciary Law § 468-a and 22 NYCRR 118.1 by failing to comply with attorney registration requirements.
We have considered the matters in mitigation found by the Referee, including that, at the time of the misconduct, respondent suffered from serious health problems and that respondent’s secretary was convicted of petit larceny resulting from her theft of funds from respondent’s trust account without respondent’s knowledge. Respondent, however, has committed serious misconduct, including the theft of client funds that resulted in his conviction of a serious crime. Accordingly, we conclude that respondent should be suspended for a period of three years, effective immediately, and until further order of the Court. Respondent is directed to make restitution pursuant to the order entered herewith. PRESENT: SCUDDER, P.J., GORSKI, GREEN, AND PINE, JJ. (Filed Mar. 16, 2007.)