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MATTER OF JANE NUSBAUM FELLER, AN ATTORNEY, RESIGNOR. -- Voluntary resignation accepted and name removed from roll of attorneys (see Matter of Manown, 240 AD2d 83). PRESENT: GORSKI, J.P., LUNN, FAHEY, GREEN, AND PINE, JJ. (Filed Sept. 26, 2007.)

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MATTER OF DONALD ROBERT GUERRA, AN ATTORNEY, RESIGNOR. -- Voluntary resignation accepted and name removed from roll of attorneys (see Matter of Manown, 240 AD2d 83). PRESENT: GORSKI, J.P., LUNN, FAHEY, GREEN, AND PINE, JJ. (Filed Sept. 26, 2007.)

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MATTER OF ANTHONY CHARLES LORETTO, JR., AN ATTORNEY, RESIGNOR. -- Voluntary resignation accepted and name removed from roll of attorneys (see Matter of Manown, 240 AD2d 83). PRESENT: GORSKI, J.P., LUNN, FAHEY, GREEN, AND PINE, JJ. (Filed Sept. 26, 2007.)

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MATTER OF AARON PHILLIP MICHEAU, AN ATTORNEY, RESIGNOR. -- Voluntary resignation accepted and name removed from roll of attorneys (see Matter of Manown, 240 AD2d 83). PRESENT: GORSKI, J.P., LUNN, FAHEY, GREEN, AND PINE, JJ. (Filed Sept. 26, 2007.)

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MATTER OF SALLY A. NASH, AN ATTORNEY, RESIGNOR. -- Voluntary resignation accepted and name removed from roll of attorneys (see Matter of Manown, 240 AD2d 83). PRESENT: GORSKI, J.P., LUNN, FAHEY, GREEN, AND PINE, JJ. (Filed Sept. 26, 2007.)

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MATTER OF JULIE HORN OLDS, AN ATTORNEY, RESIGNOR. -- Voluntary resignation accepted and name removed from roll of attorneys (see Matter of Manown, 240 AD2d 83). PRESENT: GORSKI, J.P., LUNN, FAHEY, GREEN, AND PINE, JJ. (Filed Sept. 26, 2007.)

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MATTER OF THOMAS EDWARD PEREZ, AN ATTORNEY, RESIGNOR. -- Voluntary resignation accepted and name removed from roll of attorneys (see Matter of Manown, 240 AD2d 83). PRESENT: GORSKI, J.P., LUNN, FAHEY, GREEN, AND PINE, JJ. (Filed Sept. 26, 2007.)

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MATTER OF PAUL ROBERT SCHAEFFER, AN ATTORNEY, RESIGNOR. -- Voluntary resignation accepted and name removed from roll of attorneys (see Matter of Manown, 240 AD2d 83). PRESENT: GORSKI, J.P., LUNN, FAHEY, GREEN, AND PINE, JJ. (Filed Sept. 26, 2007.)

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Disciplinary Matters

MATTER OF ROBERT BARRY, AN ATTORNEY, RESPONDENT. GRIEVANCE COMMITTEE OF THE FIFTH JUDICIAL DISTRICT, PETITIONER. -- Order of suspension entered pursuant to 22 NYCRR 1022.20 (e). PRESENT: GORSKI, J.P., LUNN, FAHEY, GREEN, AND PINE, JJ. (Filed Oct. 31, 2007.)

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MATTER OF LISA A. BLAIR, AN ATTORNEY, RESPONDENT. GRIEVANCE COMMITTEE OF THE SEVENTH JUDICIAL DISTRICT, PETITIONER. -- Order entered vacating stay and imposing suspension. Per Curiam Opinion: Respondent was admitted to the practice of law by this Court on February 24, 1999. On May 22, 2007, she was convicted upon her plea of guilty of petit larceny (Penal Law § 155.25), a class A misdemeanor, and was sentenced to a three-year term of probation. Respondent admitted in the plea colloquy that she accepted funds on behalf of a client for deposit into her attorney trust account and used some of the funds for personal purposes. This Court determined that petit larceny is a serious crime pursuant to Judiciary Law § 90 (4) (d) and, on June 22, 2007, entered an order suspending respondent, directing her to show cause why a final order of discipline should not be entered and staying the effective date of suspension pending the outcome of her appearance before the Court. Respondent appeared before the Court on September 11, 2007, and submitted matters in mitigation.We have considered the matters submitted by respondent in mitigation, including that she has made full restitution to the client and is remorseful. Accordingly, after consideration of all of the factors in this matter, we conclude that respondent should be suspended for a period of three years, effective May 22, 2007, or until the termination of the term of her probation, whichever first occurs, and until further order of the Court. PRESENT: HURLBUTT, J.P., MARTOCHE, SMITH, CENTRA, AND PERADOTTO, JJ. (Filed Nov. 9, 2007.)

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MATTER OF GERALD JOHN D’AMBROSIO, 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 June 25, 1969. By order entered October 19, 2006, he was suspended by the Supreme Court of Florida for a period of one year, effective November 18, 2006, for misconduct that included failing to comply with disciplinary rules during a previously imposed period of suspension, failing to provide competent representation and charging an excessive fee. Upon receipt of a certified copy of the order of suspension, this Court, by order entered September 12, 2007, directed respondent to show cause why reciprocal discipline should not be imposed pursuant to 22 NYCRR 1022.22. Respondent appeared before this Court and argued that he was deprived of due process in the Florida proceeding because he was not afforded an opportunity to present mitigating factors, that the determination was not supported by sufficient evidence and that the imposition of reciprocal discipline 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.

    We find that respondent was not deprived of due process of law in the Florida proceeding. He was given notice of the charges against him and was afforded a hearing. Nor is there any basis upon which to find that there was insufficient proof that respondent committed the misconduct. Following the hearing, at which respondent testified, the Referee recommended disbarment. The Supreme Court of Florida, upon its review of the record, sustained most of the charges, rejected the recommendation of the Referee regarding a sanction and imposed a period of suspension of one year. Consequently, 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 suspended for a period of one year, effective November 18, 2006, and until further order of the Court. PRESENT: GORSKI, J.P., LUNN, FAHEY, GREEN, AND PINE, JJ. (Filed Nov. 9, 2007.)

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MATTER OF VINCENT M. GAUGHAN, JR., 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 September 18, 1979, and, during the time period relevant to this proceeding, maintained an office for the practice of law in Hamburg. The Grievance Committee filed a petition charging respondent with acts of misconduct, including those arising from his representation of a client in a criminal matter. Respondent filed an answer denying material 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. The Referee filed a report based upon the pleadings and stipulated facts, which the Grievance Committee moves to confirm.

    Respondent admits that he failed to file a timely notice of appeal on behalf of his client or to move for an extension of time to take an appeal and that he made misleading statements in a voice mail message to the client with respect to the filing of an appeal. Additionally, respondent admits that he failed to comply in a timely manner with attorney registration requirements and to respond promptly to requests for information from the Grievance Committee concerning the status of his registration.

    We confirm the findings of fact made by the Referee and conclude that respondent has 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; and

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

    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 submitted by respondent in mitigation, including that the misconduct arising from his representation of the client in the criminal matter was the result of carelessness and inattentiveness and occurred during a period of time in which he was out of the country. Additionally, we have considered the finding of the Referee that respondent suffers from a serious medical condition, as well as the submission of respondent that his ability to respond promptly to requests for information from the Grievance Committee was hampered by his illness. Finally, we have considered respondent’s expression of remorse for the misconduct. Accordingly, after consideration of all of the factors in this matter, we conclude that respondent should be censured. PRESENT: GORSKI, J.P., LUNN, FAHEY, GREEN, AND PINE, JJ. (Filed Nov. 9, 2007.)

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MATTER OF WILLIAM T. JEBB, II, 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 the Appellate Division, Third Department on June 24, 1986, and maintains an office for the practice of law in Williamsville. The Grievance Committee filed a petition charging respondent with acts of professional misconduct including conversion of client funds and other trust account improprieties. Respondent filed an answer denying material 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. The Referee filed a report based upon the pleadings and stipulated facts, which the Grievance Committee moves to confirm.

    Respondent admits that he accepted a check for real estate proceeds on behalf of his clients, deposited the check into his operating account and issued checks drawn against the funds in payment of personal expenses. Additionally, respondent admits that he failed to disburse promptly the proceeds to the clients and that the fee that he charged the clients was excessive.

    We confirm the findings of fact made by the Referee and conclude that respondent has 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 (a) (22 NYCRR 1200.11 [a]) - entering into an agreement for, charging or collecting an illegal or excessive fee;

    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) (4) (22 NYCRR 1200.46 [c] [4]) - failing to pay or deliver to the client in a prompt manner as requested by the client funds in his possession that the client is entitled to receive;

    DR 9-102 (d) (1) (22 NYCRR 1200.46 [d] [1]) - failing to maintain required records of bank accounts;

    DR 9-102 (d) (2) (22 NYCRR 1200.46 [d] [2]) - failing to maintain a record for special accounts, showing the source of all funds deposited in such accounts, the names of all persons for whom the funds are or were held, the amount of such funds, the description and amounts, and the names of all persons to whom such funds were disbursed; and

    DR 9-102 (d) (9) (22 NYCRR 1200.46 [d] [9]) - failing to make accurate, contemporaneous entries of all financial transactions in his records of receipts and disbursements, special accounts, ledger books and in any other books of account kept by him in the regular course of his practice.

    We have considered the matters submitted by respondent in mitigation, including that the misconduct was confined to a one-year period during which he suffered from severe depression. Additionally, we have considered that respondent made full restitution to his clients and has expressed extreme remorse for his misconduct. Finally, we note that respondent has a previously unblemished record that includes extensive pro bono work. Accordingly, after consideration of all of the factors in this matter, we conclude that respondent should be suspended for six months and until further order of the Court (see Matter of Album, 309 AD2d 199). PRESENT: HURLBUTT, J.P., SMITH, CENTRA, AND PERADOTTO, JJ. (Filed Nov. 9, 2007.)

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MATTER OF JAMES M. JOYCE, 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 January 15, 1987, and maintains an office for the practice of law in Buffalo. The Grievance Committee filed a petition charging respondent with acts of misconduct including neglecting client matters and commingling client funds with personal funds. Respondent filed an answer admitting the material allegations of the petition, and he appeared before this Court and submitted matters in mitigation.

    Respondent admits that he neglected the matters of two clients, failed to withdraw earned fees from his attorney trust accounts in a prompt manner, thereby commingling client funds with personal funds, and failed to maintain required records of client funds.

    We conclude that respondent has 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 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]) - commingling client funds with personal funds;

    DR 9-102 (c) (3) (22 NYCRR 1200.46 [c] [3]) - failing to maintain complete records of all funds of a client coming into his possession and to render appropriate accounts to the client regarding them;

    DR 9-102 (c) (4) (22 NYCRR 1200.46 [c] [4]) - failing to pay or deliver to the client in a prompt manner as requested by the client the funds in his possession that the client is entitled to receive;

    DR 9-102 (d) (1) (22 NYCRR 1200.46 [d] [1]) - failing to maintain required records of bank accounts;

    DR 9-102 (d) (2) (22 NYCRR 1200.46 [d] [2]) - failing to maintain a record for special accounts, showing the source of all funds deposited in such accounts, the names of all persons for whom the funds are or were held, the amount of such funds, the description and amounts, and the names of all persons to whom such funds were disbursed; and

    DR 9-102 (d) (8) (22 NYCRR 1200.46 [d] [8]) - failing to maintain checkbooks and check stubs, bank statements, prenumbered cancelled checks and duplicate deposit slips.

    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 submitted by respondent in mitigation, including that, at the time of the misconduct, he was preoccupied with the health problems of family members. Additionally, we have considered that respondent has revised his accounting procedures in order to prevent a recurrence of the misconduct and has expressed remorse. Accordingly, after consideration of all of the factors in this matter, we conclude that respondent should be censured. PRESENT: HURLBUTT, J.P., MARTOCHE, SMITH, CENTRA, AND PERADOTTO, JJ. (Filed Nov. 9, 2007.)

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MATTER OF J. DOUGLAS LI BASSI, AN 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 this Court on January 15, 1987. By judgment and order entered July 12, 2006, respondent was disbarred by the Supreme Judicial Court of the Commonwealth of Massachusetts for misconduct that included misappropriation of client funds. This Court, upon receipt of a certified copy of that judgment and order, directed respondent, by order entered December 8, 2006, to show cause why reciprocal discipline should not be imposed pursuant to 22 NYCRR 1022.22. We adjourned the return date of the order to show cause pending the determination of respondent’s appeal from the judgment and order. By order entered June 5, 2007, the judgment and order was modified by making the effective date retroactive to May 14, 2002, the date on which respondent came into compliance with a temporary order of suspension (Matter of LiBassi, 449 Mass 1014, 867 NE2d 332). Respondent’s petition for a rehearing was denied by order entered July 26, 2007. Respondent thereafter appeared before this Court and indicated that he has no opposition to the imposition of reciprocal discipline.

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 having raised no objection to the imposition of reciprocal discipline by this Court, we conclude that he should be disbarred, effective May 14, 2002. PRESENT: GORSKI, J.P., LUNN, FAHEY, GREEN, AND PINE, JJ. (Filed Nov. 9, 2007.)

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MATTER OF GREGORY G. MC PHEE, AN ATTORNEY, RESPONDENT. GRIEVANCE COMMITTEE OF THE FIFTH JUDICIAL DISTRICT, PETITIONER. -- Order of suspension entered. Per Curiam Opinion: Respondent was admitted to the practice of law by this Court on June 21, 2000, and formerly maintained offices for the practice of law in Syracuse and Brewerton. The Grievance Committee (petitioner) filed a petition charging respondent with acts of professional misconduct arising from his representation of five clients in criminal matters. Respondent filed an answer denying material allegations of the petition and a referee was appointed to conduct a hearing. Respondent failed to appear on the scheduled hearing date, and the hearing proceeded in his absence. The Referee filed a report, which petitioner 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 legal fees from four incarcerated clients, failed to complete the work for which he was retained and refunded no part of the legal fees. Additionally, the Referee found that respondent failed to appear at a scheduled court date on behalf of another client in a criminal matter, failed to return the client’s telephone calls and moved from his law office without notifying the client. Finally, the Referee found that respondent failed to comply timely with requests from petitioner for information and for responses to client complaints, requiring petitioner to obtain a subpoena from this Court.

    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 his 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 refund 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 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; and

    DR 7-101 (a) (3) (22 NYCRR 1200.32 [a] [3]) - intentionally prejudicing or damaging a client during the course of the professional relationship.

    We have considered, in determining an appropriate sanction, the finding of the Referee that there are no mitigating factors in this matter. We note, in this regard, our agreement with the contention of petitioner that respondent’s conduct in electing to certify his retirement from the practice of law during the pendency of petitioner’s investigation should have no bearing on the sanction imposed. We have also considered the aggravating factors found by the Referee, including respondent’s deliberate failure to appear for the hearing and his contact, prior to the hearing, with two of petitioner’s prospective witnesses for the purpose of persuading the witnesses to sign statements that the witnesses termed false. Finally, we have considered the failure of respondent to respond to the motion filed by petitioner or to appear before this Court on the return date. Accordingly, after consideration of all of the factors in this matter, we conclude that respondent should be suspended for two years and until further order of the Court. PRESENT: HURLBUTT, J.P., MARTOCHE, SMITH, CENTRA, AND PERADOTTO, JJ. (Filed Nov. 9, 2007.)

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MATTER OF KENNETH A. REDDING, 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 the Appellate Division, Second Department on November 17, 1982, and maintains an office for the practice of law in Amherst. The Grievance Committee filed a petition charging respondent with acts of misconduct arising from the transfer of client funds from a law firm trust account to escrow and investment accounts. 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 has moved to confirm in part. Respondent has cross-moved to dismiss the petition.

    The Referee found that respondent, while employed as an associate attorney in a law firm, authorized the transfer of client funds from a trust account held by the law firm and from an escrow account held by a title abstract company owned by a senior partner in the law firm into a business account that respondent had opened for his title company with a deposit of personal funds, thereby commingling client funds with personal funds. Additionally, the Referee found that respondent authorized the deposit of client funds and other funds received incident to his law practice into an investment account, where the funds earned interest and dividends. Although declining to find that respondent misappropriated the earnings on the funds to his own use, the Referee found that respondent did not account for or remit to clients the interest and dividends earned on the funds.

    We confirm the findings of fact made by the Referee, except to the extent that the Referee failed to find that respondent misappropriated the interest and dividends earned on client funds. Interest and dividends earned on funds held by an attorney on behalf of a client or third party is the property of the client or third party, and the attorney is obligated to report and to pay to the client or third party the interest and dividends earned thereon (see generally Matter of Summer, 238 AD2d 86, 87). The interest and dividends at issue here were earned on client funds in accounts held by a title company that was owned, in part, by respondent and used by respondent for the transaction of real estate matters. That no client or third party made a request for the earnings, none having had knowledge of such earnings, does not relieve respondent of the responsibility to account for and remit the funds. Consequently, we grant the motion of the Grievance Committee and deny respondent’s motion.

    We conclude that respondent has violated the following Disciplinary Rules of the Code of Professional Responsibility:

    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; and

DR 9-102 (c) (1) (22 NYCRR 1200.46 [c] [1]) - failing to notify a client or third party promptly of the receipt of funds in which the client or third party has an interest.

    In determining an appropriate sanction, we have considered the Referee’s findings that respondent had no intent to convert client funds to his own use and that no client or third party demanded the earnings on the funds. Accordingly, after consideration of all of the factors in this matter, we conclude that respondent should be censured. Additionally, we direct respondent to pay restitution to the IOLA Fund in accordance with the order entered herewith. PRESENT: GORSKI, J.P., LUNN, FAHEY, GREEN, AND PINE, JJ. (Filed Nov. 9, 2007.)

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MATTER OF ROBERT E. SCOTT, 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 21, 1978, and maintains an office for the practice of law in Buffalo. On September 19, 2007, respondent was convicted upon his plea of guilty in Town Court of failure to pay tax (Tax Law § 1810), an unclassified misdemeanor. Respondent admitted that he failed to pay personal income tax for a four-year period. He was sentenced to a conditional discharge.

    The Grievance Committee filed proof of respondent’s conviction in support of an application for an order suspending respondent and directing him to show cause before this Court why a final order of discipline should not be made on the ground that respondent had been convicted of a serious crime. Respondent opposed the application and submitted that a conviction of a violation of Tax Law § 1810 does not constitute a serious crime pursuant to Judiciary Law § 90 (4) (d). We agree.

    This Court is authorized to suspend an attorney upon receipt of proof that the attorney has been convicted of a serious crime, and, upon the judgment of conviction becoming final, to direct the attorney to show cause why a final order of discipline should not be made (Judiciary Law § 90 [4] [f] and [g]).

    A serious crime is defined in Judiciary Law § 90 (4) (d) as an offense that constitutes a felony in another jurisdiction and any other crime that includes as a necessary element one of the elements enumerated in the statute. The crime of which respondent was convicted includes none of the elements enumerated in the statute.

    We have considered, in determining an appropriate sanction, the matters submitted by respondent in mitigation, including that he had paid all taxes due prior to the entry of his plea of guilty, that he has an unblemished record after nearly 30 years in practice and that he has an outstanding record of public service. Additionally, we have considered the numerous letters submitted on behalf of respondent attesting to his good character. Finally, we have considered respondent’s expression of extreme remorse. Accordingly, after consideration of all of the factors in this matter, we conclude that respondent should be censured. PRESENT: GORSKI, J.P., LUNN, FAHEY, GREEN, AND PINE, JJ. (Filed Nov. 9, 2007.)

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MATTER OF ROBERT M. TYLE, A SUSPENDED ATTORNEY, RESIGNOR. -- Resignation accepted and name stricken from roll of attorneys. PRESENT: GORSKI, J.P., LUNN, FAHEY, GREEN, AND PINE, JJ. (Filed Nov. 9, 2007.)

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MATTER OF MICHAEL A. YOOD, 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 June 28, 1990. The Grievance Committee filed a petition charging respondent with acts of misconduct arising from his representation of a client in a Family Court matter. 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 and respondent cross-moves to dismiss.

    It is undisputed that respondent failed to appear at a scheduled court appearance, resulting in the entry of a default judgment against his client. The Referee found that, following the default, respondent created a fictitious letter requesting an adjournment in order to conceal the fact that he missed the scheduled court appearance. The Referee further found that respondent used the letter in an attempt to seek the intervention of the Supervising Judge of Family Court, that he submitted the letter in support of a motion to vacate the default judgment, and that, in support of that motion, he prepared and filed with the court an affidavit sworn to by his client setting forth that an adjournment had been requested in the letter.

    Respondent denied that the letter was a fabrication and testified that he did not appear on the scheduled date because he believed that he had prepared and sent a letter requesting an adjournment.

    The findings of the Referee indicate that he did not credit the testimony of respondent. According the findings of the Referee the great weight to which they are entitled " ‘[w]hen the resolution of issues in a disciplinary proceeding depends upon the credibility of witnesses’ " (Matter of Mitchell, 32 AD3d 55, 56-57; see Matter of Cellino, 21 AD3d 229, 231), we grant the Grievance Committee’s motion and deny respondent’s cross motion.

    We conclude that respondent has 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 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.

    We note, in determining an appropriate sanction, that the client was not harmed as a result of respondent’s misconduct because Family Court granted the client’s request to vacate the default judgment. Additionally, we have considered the character references submitted by respondent. Respondent, however, has committed serious misconduct. 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: HURLBUTT, J.P., MARTOCHE, SMITH, CENTRA, AND PERADOTTO, JJ. (Filed Nov. 9, 2007.)

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MATTER OF DAVID E. ZACEK, AN ATTORNEY, RESPONDENT. GRIEVANCE COMMITTEE OF THE FIFTH JUDICIAL DISTRICT, PETITIONER. -- Order of suspension entered. PRESENT: GORSKI, J.P., LUNN, FAHEY, GREEN, AND PINE, JJ. (Filed Oct. 31, 2007.)

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