Appellate Division: Second Judicial Department

M51866

K/nl

A. GAIL PRUDENTI, P.J.

ROBERT W. SCHMIDT

STEPHEN G. CRANE

WILLIAM F. MASTRO

FRED T. SANTUCCI, JJ.

2006-10354 In the Matter of Robert M. Cronk, admitted as Robert Michael Cronk, an attorney and counselor-at-law. Grievance Committee for the Ninth Judicial District, petitioner; Robert M. Cronk, respondent. (Attorney Registration No. 2875003)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Ninth Judicial District for an order: 1) suspending the respondent from the practice of law on an interim basis, pursuant to 22 NYCRR 691.4(l)(1)(i,(ii) and (iii), upon a finding that he is guilty of misconduct immediately threatening the public interest in that he has failed to comply with the lawful demands of the Grievance Committee for the Ninth Judicial District, and based upon substantial admissions he has made under oath that he has committee acts of professional misconduct and on other uncontroverted evidence of professional misconduct; 2) authorizing it to institute and prosecute a disciplinary proceeding against him; 3) directing the respondent to answer the petition annexed to the Grievance Committee's Order to Show Cause within 20 days after service of the order determining this motion; and 4) appointing a Special Referee to hear and report. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on May 20, 1998, under the name Robert Michael Cronk.

Upon the papers submitted in support of the motion and the papers submitted in opposition thereto, it is

ORDERED that the motion of the Grievance Committee for the Ninth Judicial District is granted; and it is further,

ORDERED that pursuant to 22 NYCRR 691.4(l)(1)(i), (ii) and (iii), the respondent Robert M. Cronk, admitted as Robert Michael Cronk, is immediately suspended from the practice of law in the State of New York, pending further order of the court; and it is further

ORDERED that the respondent Robert M. Cronk, admitted as Robert Michael Cronk, shall promptly comply with this court's rules governing the conduct of disbarred, suspended, and resigned attorneys (see 22 NYCRR 691.10); and it is further,

ORDERED that pursuant to Judiciary Law § 90, during the period of suspension and until further order of this court, the respondent, Robert M. Cronk, admitted as Robert Michael Cronk, is commanded to desist and refrain from (1) practicing law in any form, either as principal or agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law of its application or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law; and it is further,

ORDERED that the Grievance Committee for the Ninth Judicial District is hereby authorized to institute and prosecute a disciplinary proceeding in this court against Robert M. Cronk, admitted as Robert Michael Cronk, based on the petition dated November 2, 2006; and it is further,

ORDERED that Gary L. Casella, Chief Counsel to the Grievance Committee for the Ninth Judicial District, 399 Knollwood Road, Suite 200, White Plains, N.Y. 10603, is hereby appointed as attorney for the petitioner in such proceeding; and it is further,

ORDERED that within 20 days after service upon him of a copy of this decision and order, the respondent shall serve an answer upon the petitioner and the Special Referee, and shall file the original answer in the office of the Clerk of this court; and it is further,

ORDERED that the issues raised by the petition and any answer thereto are referred to the Honorable Jerome M. Becker, a former Judge of the Criminal and Family Courts, c/o Douglas Becker, Esq., Joseph P. Day Co., 9 East 40th Street, 8th floor, New York, N.Y. 10016, as Special Referee to hear and report within 60 days after the conclusion of the hearing on the submission of post-hearing memoranda; and it is further,

ORDERED that if the respondent, Robert M. Cronk, admitted as Robert Michael Cronk, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency and the respondent shall certify to the same in his affidavit of compliance pursuant to 22 NYCRR 691.10(f).

We find, prima facie, that the respondent is guilty of professional misconduct immediately threatening the public interest based upon his failure to cooperate with the Grievance Committee's investigations, his own admissions and other uncontroverted evidence of misconduct, including, inter alia, mismanagement of his escrow account and neglect of a client's criminal action.

In or about December 2005, a complaint was filed against the respondent with the Grievance Committee for the Tenth Judicial District by Joseph B. Fruchter, Esq., an attorney with offices in Hauppauge, New York, with respect to a check issued by the respondent from his IOLA account. The underlying matter involved a consent to change attorney form that substituted the law office of the respondent's former employer, Edward T. Chase, Esq., in place of Mr. Fruchter for client Sharon Berg. The respondent issued the check from an IOLA account maintained by him in connection with his own practice in Bayshore, New York, at the Bank of New York, to reimburse Mr. Fruchter for litigation related disbursements. Mr. Fruchter knew that his client was in desperate need of money and would have trouble covering her own litigation expenses. As a courtesy, he wrote to the respondent and tried to reach him by telephone to inquire whether it was appropriate to deposit the check. After receiving no response, Mr. Fruchter then filed the complaint against the respondent with the Grievance Committee believing the circumstances to be suspicious.

The Fruchter complaint was transferred to the Grievance Committee for the Ninth Judicial District based on records of the Office of Court Administration (hereinafter OCA) indicating that the respondent maintained his primary office in the Ninth Judicial District.

During that time, the Grievance Committee also opened a sua sponte investigation because OCA's records indicated that respondent had not filed for some time, the biennial registration forms or paid the registration fees required of attorneys under Judiciary Law §468-a and 22 NYCRR §118.1. The Grievance Committee also opened a second sua sponte investigation in or about February 2006, based upon a decision and order of the County Court, Suffolk County, dated December 30, 2005, in the case of People v Nicholas McCall, Case No. 1731A-2005, wherein the court sanctioned the respondent pursuant to 22 NYCRR 130-2 for, inter alia, his failure to attend a series of scheduled court conferences.

With respect to the Fruchter complaint, the respondent answered by a letter received by the Grievance Committee in early January 2006, in which he stated that Mr. Chase thought it best to expedite the transfer of Ms. Berg's file to their office. The respondent's office, like Mr. Fruchter's office, is in Suffolk County. Mr. Chase's office is in Westchester County. Therefore, in order to expedite the transaction, he wrote a check from his IOLA account for Mr. Fruchter's expenditures in order that he might take possession of the file. Then, upon transferring the file to Mr. Chase's Westchester office, Mr. Chase immediately issued a check to the respondent from his business account which the respondent deposited in order to cover the IOLA check from his account.

Thereafter, the Grievance Committee requested that the respondent produce at its offices on or before March 1, 2006, inter alia, specified bookkeeping records relating to his attorney escrow account and that he appear for an examination under oath.

The respondent failed to produce the records requested and he failed to respond to follow up phone calls and written communications from the Grievance Committee's staff counsel. The Grievance Committee thereafter obtained subpoenas to compel the respondent's examination under oath and the production of his bookkeeping records which were personally served on the respondent at his place of employment in Mount Vernon on March 23, 2006.

On April 27, 2006, the respondent appeared without counsel at the Grievance Committee's offices. He again did not produce the requested bookkeeping records. During his testimony under oath, he related that as of the preceding day, he was no longer employed by the attorney in Mount Vernon, Edward Chase, Esq., and that his office space in Bayshore, New York, was closed. He admitted that during the past year he had become deeply depressed over a failed relationship and he just let everything go. He acknowledged that he arrived at the point where he just did not care and did not go to the office.

With respect to the order of contempt issued against him for failing to appear in court on behalf of Mr. McCall, the respondent conceded that he did not go to court because the client did not pay him.

The respondent further admitted that he had not brought any of the requested bookkeeping records to the hearing. He stated that this was because he did not have anything that was useful pertaining to this matter. He claimed that his records had been stored in a storage area of his Bayshore office to which he no longer had access. Moreover, he stated that the storage area had been flooded and the records destroyed. With respect to his bank records, the respondent stated that he kept a basic ledger regarding the escrow account, but he did not know where that was. He believed it would be at his former office in Bayshore. He admitted that he made no attempt to get copies of his records from the bank claiming that he was unaware until the prior week that his records had been flooded. He promised to go to the bank by the following week to request copies of his records.

The respondent maintained that his records would show little or no activity except for one period with respect to a client Catherine Blount that went through Mr. Chase's office in or about the summer of 2005. Ms. Blount received recovery for personal injuries. She had no identification, no bank, and was homeless. She requested that respondent hold the money that she recovered from her personal injury action in his account and give it to her as she needed it. The respondent admitted that he would just write a check to cash, cash it for her and then hand her the cash. The respondent disbursed approximately $60,000 to $65,000 for Catherine Blount within a few months.

The respondent acknowledged that he had received a letter from the Grievance Committee dated January 17, 2006, regarding his failure to register with OCA. He stated that he had not taken any action since he received the letters because he did not have any money.

According to the Grievance Committee, although at the hearing the respondent expressly agreed to cooperate with any requests for additional information in the future, he failed to follow through on his promise and never provided an accounting despite many lawful requests from the Grievance Committee.

The Grievance Committee obtained records directly from the Bank of New York regarding the respondent's escrow account for the period from May 2005 through March 31, 2006, which showed that a total of $109,282 had been deposited into the respondent's IOLA during the period under review. The respondent issued 86 checks during this time period disbursing a total of $109,256. Seventy-two of those checks issued from the respondent's escrow account were drawn to the order of cash, and not to a named payee. Also, the records reflect a number of disbursements by check and wire transfer for what appear to be personal expenses during times when client funds were also on deposit in the account.

In light of the discrepancies found in the bank records, further attempts were made to have the respondent provide a full accounting and explanation for the activity in his escrow account. By letter dated May 26, 2006, sent by both regular mail and certified mail, return receipt requested, the respondent was asked to provide additional information to the Grievance Committee. The respondent was then granted an extension of time to July 28, 2006. By letter dated June 28, 2006, copies of the bank records were forwarded to him.

Despite the respondent's repeated representations that he would comply with the Grievance Committee's requests for a full accounting and explanation for the activity in his escrow account, he failed to do so.

Attached to the Grievance Committee's order to show cause is a proposed petition dated November 2, 2006, setting forth nine charges of misconduct against the respondent.

The respondent's own admissions under oath that he committed acts of professional misconduct, the documentary evidence presented by the Grievance Committee that he repeatedly failed to comply with its lawful demands for the production of his account records and other information, and the uncontroverted evidence, including bank records, that he engaged in professional misconduct, establish that his misconduct immediately threatens the public interest and that his immediate suspension is warranted pursuant to 22 NYCRR 691.4(l)(1)(i),(ii) and (iii).

Accordingly, the Grievance Committee's motion is granted, the respondent is immediately suspended from the practice of law, pursuant to 22 NYCRR 691.4(l)(1)(i),(ii) and (iii), and the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against him.

PRUDENTI, P.J., SCHMIDT, CRANE, MASTRO and SANTUCCI, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court